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SPECIAL EDITION
By Marisella Ouma PhD
K
enya is known the world over for its
excellence in athletics especially in
long distance races and marathon.
Other sports have their fair share of success
such as rugby and volleyball to name a few.
Kenya also produces world class footballers
who play for the premier league in the United
Kingdom and other countries in Europe.
The industry creates revenue streams for the
sportspersons, advertising agencies, broad-
casting organisation, investors such as team
owners and clubs, sports academies and the
economy in general.
During the 2018 World Cup, FIFA made
USD$ 6.1 billion from the event and this
included USD 2.4 billion from broadcasting
and USD 1.6 billion from advertising. This
is mainly due to the existing intellectual
property rights.
Intellectual Property rights provide a
platform for innovation and creativity, which
in turn plays a crucial role in the growth and
development of sports. The last few decades
have seen an increase in commercialisation
of sports the world over and Kenya has not
been left behind.
It is not just about the cash prizes but
also included broadcasting, branding and
merchandising, sponsorship and advertising
as well as licensing. These are all covered by
different aspects of intellectual property such
as copyright and related rights, trademarks
and service marks, unfair competition and
more recently image rights.
Intellectual property in sports plays a very
big role in Kenya and this can be harnessed
for economic development.
Trademark in sports as a
valuable commercial asset
A strong brand sells and trademarks provide
the necessary legal framework to capitalise
on the brand. Brands are critical in creating
value including in sports as they command
strong customer loyalty and premium prices.
They create valuable assets that contribute
to the generation of intellectual capital. This
is realised through sponsorship, licensing
and merchandising. It is notable that the
sponsors usually work with the winning
team with a strong brand. A trademark
is a distinguishing word, sign, mark or a
combination of the word, mark or sign which
distinguishes a product or service from those
of the competitors. According to the World
Intellectual Property Organisation (WIPO),
trademarks are valuable assets which build
trust, confidence and loyalty in a product and
if successful, represent a promise kept. The
goodwill associated with the strong brand
and ultimately the trademark is a valuable
commercial aspect.
In the case of sports, the trademark can
be that used by the sportsperson or team that
emanates from their strong brand. In such
cases, you will find that the trademark can
be used to generate income for the sports
personality or team.
Strong teams and sports personalities
create strong brands. Good examples include
the National Basketball Association (NBA)
in the United States of America and Eluid
Kipchoge of Kenya. Endorsements based
on the performance generate income for
better facilities as well as facilitate further
development as an incentive and reward.
In the English Premier league or the
South African Rugby, it is common to see
various sponsors advertised in the stadium
or on the broadcasts and online streams of
the live events. The sponsors would want
to associate with a popular sporting event
to increase their visibility and increase
their sales by appealing to the emotions of
the viewers or spectators during the sports
events. The sponsorship also benefits the
team or the sportsperson.
The performance of a team or sports
person determines the strength of the brand
and that is why in countries like Kenya,
where a particular sport is not doing
well, getting official sponsors becomes a
problem. In 2013, Nike signed a USD 5.7
million sponsorship deal with the National
Olympic Committee of Kenya. This could be
attributed to the strong performance of the
Kenyan Athletics team which in turn creates
a strong brand. The Nike deal capitalises on
this and is also aimed at improving the sales
of their trademarked brand of sportswear.
The trademarks and service marks in Kenya
are protected under the Trademarks Act
Chapter 506 of the laws of Kenya.
Use of trademarks and service marks also
creates a great market for merchandising for
both the sponsors and sports personalities and
teams and all other players in the industry.
These include sportswear, equipment,
and other merchandise associated with
a particular sport. The endorsement of a
particular product, for instance running shoes
from a particular brand, goes a long way in
boosting the sales. The companies will in
most cases chose successful teams or sports
persons for endorsements who will in turn
also benefit from the endorsement deals.
Intellectual Property and
Sports in Kenya: An Overview
SOURCE: http://www.capitalfm.co.ke
Copyright News
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Broadcasting rights as a
revenue earner
Broadcasting and streaming of live sports
events is also a major revenue earner in the
business of sports. In major sporting events
such as the FIFA World Cup, the English
football Premier League and the Olympics,
the broadcasting rights are granted on an
exclusive basis to specific broadcasting
organisations to air the same in specific
geographic locations.
These are multi- million dollar licences
that will in turn be used by the broadcasting
organisations to make money. The sports
event in itself does not have intellectual
property rights but transmission of the signal
especially for the live coverage falls under
the purview of related rights under copyright.
This forms the basis for granting of these
exclusive rights by for instance FIFA. These
are premium events that generate millions
through licensing and advertising. The
revenue from broadcasting and licensing of
media rights form core source of revenue
for the organisers of the events and the
teams. This is in turn used to upgrade the
infrastructure and other facilities as well
as pay the players and sportspersons and
improve their well-being and also improve
the sport as a whole.
The rights granted to Broadcasting
Organisations under the Copyright and
related rights take cognisance of costly
investments made by the broadcasting
organisation to air the event such as the
infrastructure and the acquisition of rights.
The theft of programme carrying signals
and unauthorised streaming or transmission
of live sporting events
poses a threat to
the broadcasting
organisations as
they lose revenue
from these
unauthorised
activities.
There is need to have a proper legal
framework to take into account the new
technological developments in this field
as it contributes significantly to the
growth and development of sports. In
Kenya, the Copyright Act Chapter 130 of
the Laws of Kenya grants broadcasting
organisations exclusive rights to authorise
the re-broadcasting, fixation of broadcasts,
reproduction and communication to the
public.
The right of making available in
the case of digital transmission and
retransmission is subsumed in the right of
communication to the public. However,
it is clear that there is need to update
the law to ensure that the ever changing
technologies are covered and protect
against signal piracy. Therefore, where
a broadcasting organisation gets the
exclusive rights to broadcast a sports event
such as the FIFA World Cup, no third party
may do the same
without their
authorisation. This helps in securing their
investments which they recoup from the
advertising revenue.
Use of Songs or musical
scores in sports
The use of songs, musical scores and audio-
visual performances also brings in the aspect
of copyright in sports. There are certain
sports such as synchronised swimming
that will require music to execute. In
other instances, music is composed and or
performed for a sports event and there are
underlying copyright issues that need to be
addressed.
The case of the 2010, FIFA World Cup
theme song, where the organisers had to get
clearance from the rights holders failure of
which they would not have been able to use it
provides a good example. The artists also get
paid money to perform sporting events and
get paid as well as get a worldwide platform
to showcase their work.
There are other copyright
works that arise due to
sports such as artwork
and photography as
well as biographies
and autobiographies
SOURCE: http://www.ebru.co.ke/wp-content/uploads/2018/01/sp.jpg
SOURCE: http://1.bp.blogspot.com/-yODyFlCPcgM/UMG_2bBh2zI/AAAAAAAAD1Q/EKSqEl8ipAo/s1600/kenya-7s.jpg
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SPECIAL EDITION
as well as books on the different sports.
These are all subject to copyright protection
including the training manual and books on
nutrition. The YouTube videos and other
online material are also subject to specific
terms and conditions for use. Copyright
grants the author/rights holder, exclusive
rights to reproduce, distribute, broadcast,
adapt, and communicate to the public,
subject to certain exceptions and limitations
for a limited period of time.
Patents and design
rights in sports
Inventions within the sports industry also
provide for an interface between intellectual
property and sports through patents. There
are various inventions that are geared
towards the sports and are also subject
to patent protection. A patent basically
provides the patentee with monopoly to work
the patent for a specific period of time in
exchange for disclosure of the same to the
government. In sports, there are different
types of equipment that are protected by
patents, which facilitate efficient execution
and achievement of targets. These include
technologies that help athletes run faster,
such as more comfortable sports shoes,
lighter equipment for instance in the case
of cycling, improved technologies in the
motorsports, equipment to monitor speed and
heart rate, technology to provide precision in
determining the distance, scoring of goals, to
name a few.
It is trite to say that there are patents
that are granted specifically for the sports
industry. In Kenya, the Industrial Property
Act provides for both patents, and utility
models (better known as petty patents). This
is an area that has great potential but is yet to
be fully exploited.
Design rights also have a role to
play in sports. Industrial
designs provide an
item with a
distinct aesthetic character that is protected
under the Industrial Property Act. Various
companies invest in designs for sportswear
and equipment. The creative aspect of the
design is protected and it is common to find
a particular design made for a team or sports
personality and it can be quite competitive
and a source of revenue.
Trade secrets abound in the world of
sports which include training routines,
nutritional plans, physiological metrics, and
competitive strategies among others.
These are held in confidence and not
shared with others to provide the competitive
advantages. In Kenya, the athletes, especially
long distance runners may have trade secrets
that contribute to their sterling performances.
This has necessitated athletes from other
countries setting camp in Kenya and
particularly in high altitude camps to try and
get the same training.
But so long as the secret is not divulged,
then it is protected as a trade secret.
Image rights in sports
A few years ago, one of the prominent
footballers in Kenya took up the issue with
East Africa Breweries on the use of his image
(and that of other footballers in the national
team, Harambee Stars) in an advertisement
without his permission.
The East Africa Breweries on their part
were of the view that since they had granted
the team a KES 110 million sponsorship
deal, they had the right to use the images of
the team. This is an area that has not been
fully addressed by the law in Kenya. The
question is do the sports personalities have
the right to their images and should they have
a say in how their images are used?
On the one hand, if copyright law was
to be strictly applied, then the person who
took the photo is the one deemed to be the
author unless the work was done for hire or
commission or under employment, in which
case the rights would vest in the person who
commissioned the work or the employer.
That being said, there is a reason as to
why a company would want to use well
known sports personalities as opposed to
hiring models for advertising as this is likely
to attract more users or consumers. Thus the
emergence of protection of image/personality
rights in the case of well-known sports
personalities.
From the foregoing, it is clear that
Intellectual Property plays a major
role in growth and development of
sports in Kenya. There is need
to harness this potential
within the existing
legal and regulatory
framework and
where possible,
review or come
up with new
legislation that
facilitates the
sports industry in Kenya.
SOURCE: THE DAILY MAIL ONLINE - https://www.dailymail.
co.uk/sport/football/article-3111413/Premier-League
SOURCE: https://ipkenya.files.wordpress.com/2012/06/oliech-mariga-mugalia.jpg