The Right to Information and of Short Reporting/short Extracts with Regard to Sports *

Abstract

I. Introduction In this contribution I will first deal with the case NOS (the Dutch joint national public broadcaster) v. Talpa (a new commercial broadcaster) regarding the possible existence of an enforceable "preferential right" of the NOS with regard to the short reporting (summaries) of matches of the Dutch Premier League on the basis of Article 71t of the Media Act (Mediawet). Secondly, I will deal with and comment on the proposed Article 3b of the Television without Frontiers Directive in the light of the NOS v. Talpa case. What conclusions may be drawn from comparing the proposal with the case, what lessons may be learned? II. NOS v. Talpa case In an open tender procedure, in December 2004 Talpa, regarding acquisition of exclusive sports rights as the pre-eminent method for rapid acquisition of a viable market share, had acquired from the Dutch Premier League (ENV) the right to broadcast on television extracts of all Premier League matches and play-offs in the seasons 2005/2006 up to and including 2007/2008. Apart from that, a second right regarding the same package (however, with a maximum of 5 minutes per game), on the condition of postponed (deferred) transmission had been purchased by another commercial broadcaster (RTL). This tender was a total break with tradition. In the past, dating back to the fifties, the rights regarding extracts always were sold privately to the NOS. Next to this arrangement, in recent years the rights to live broadcasting of matches in the Premier League were purchased by Canal+. However, the Dutch national competition authority had raised objections to this state of affairs. This time next to NOS and Talpa there was even a third competitor, that is Versatel who acquired the live broadcasting rights. In pursuance of the results of the tender procedure, the NOS had requested Talpa to open negotiations regarding the acquisition by the NOS of a sub-licence for the broadcasting rights that had been acquired by Talpa. The latter refused the request to negotiate, also because under their contract with the Dutch Premier League they were not allowed to concede any sub-licence. 1. Article 71 t of the Dutch Media Act In its Decision of 14 June 2005 in the NOS v. Talpa case which was upheld in appeal (Decision of 2 February 2006), the national Broadcasting Authority (Commissariaat voor de Media, CvdM) starts by saying that, next to the text of the Law, for the interpretation of Article 71 t of the Media Act the views expressed in the parliamentary papers and pertinent academic literature are essential. Article 71 t Dutch Media Act states: "A commercial broadcasting organization is not allowed to broadcast or cause to be broadcast a programme item as referred to in Article 51d, second paragraph, insofar as this concerns a part of a television programme which can only be distributed in the Netherlands after acquisition of the rights pertaining to it, if: a. the commercial broadcasting organization has not informed the Foundation (read: NOS; RS) on time that it wishes to acquire the rights referred to in the opening words to the exclusion of the organizations which have obtained broadcasting time for nationwide broadcasting; and b. the Foundation has notified the commercial broadcasting organization within a reasonable time after the information referred to under a. that it or another organization which has obtained broadcasting time for nationwide broadcasting wishes to include the programme item in question in its programme." The Authority then points out that Article 71 t of the Media Act consists of the following elements. The Article addresses commercial broadcasters who wish to acquire the rights regarding programme items inter alia covering topical sports reporting, in any case including the competition and cup matches and international events (these are items which need to be broadcast with high frequency and regularity, have a service character, or can be produced more efficiently when produced jointly by public broadcasters). …