The high court establishes that the broadcast of matches in bars without authorization is a crime against the market, but not against intellectual property
Offering football matches in bars and restaurants without paying the rights that allow their exhibition constitutes a minor crime for the market and consumers, but it does not violate intellectual property, a crime that, unlike the previous one, does carry a prison sentence. This is how the Supreme Court considers it in a sentence, whose ruling was advanced on May 31, in which it rejects the claims of the Prosecutor’s Office and LaLiga, who appealed a sentence of the Provincial Court of Valencia that sentenced to pay 720 euros of a fine and to compensate LaLiga to a businessman who since October 2018 broadcast football matches without authorization on the televisions of his three bars in the Turia capital. For the Public Ministry, it was a crime against intellectual property, a legal qualification that the Supreme Court disagrees with.
It is not a trivial matter, every time since the legal reform of 2015 the Penal Code punishes with sentences of six months to four years in prison whoever for economic benefit “reproduces, plagiarizes, distributes or economically exploits” a work or benefit ” literary, artistic or scientific” reflected “in any type of support or communicated through any means”, without the authorization of the owners of those property rights.
In its ruling, a statement by President Manuel Marchena, the high court explains that “audiovisual recordings and transmissions by broadcasting entities form part of the material content of the right to intellectual property and that there is no doubt that the public communication of those recordings is only legitimate if properly authorized.” For the chamber “it is also not debatable that the infringement of these rights is criminally sanctioned and for this it is enough to verify that the facts analyzed have been classified as a crime against the market and consumers.”
However, the magistrates reject that the violation of the exclusive rights generated by the broadcast of a football match fits into the notion of “literary, artistic or scientific work or performance.” The sentence points out that it is not easy to set the limits of the type when it contains normative elements that evoke literature, art or science. Precisely for this reason -adds the court- “the guidelines to define that scope must be extremely prudent so as not to overflow the contours of what each word allows to encompass”.
«Football, of course, is not literature. It is not science either”, states the Supreme as a doctrine. «It is true that in a football game -in general, in any sporting show- there can be incidents of undeniable aesthetic value, but interpreting those moments or sequences of technical perfection as defining notes of an artistic show can lead to transgressing the limits of the principle typical”, he adds.
For the room, “a football match is a sporting spectacle, not an artistic one”, and that conclusion is reached, “not only because of the empirical verification that there are no shortage of matches in which the spectator does not have the opportunity to appreciate any value play artistic, but because in the search for victory, actions take place that are significantly distant from any canon, whichever one is subscribed to, of artistic beauty».
The decision of the Supreme Court is not exempt from reproaches to the legislator. “There are many occasions in which the legislative will and the legal technique to make it a reality do not go hand in hand,” he explains. “Recent experience shows that this divorce between the dictates of dogmatics and legislative reality has become a phenomenon that has acquired a worrying charter of nature,” he continues.
