Qatar diplomatic crisis: “beIN Sports” and potential violations of the TRIPS Agreement – Part 2

After Part 1, this is the second part of the analysis by Katfriend Riyadh Al-Balushi (SOAS University of London) of the the IP implications of the Qatar diplomatic crisis.

Here's what Riyadh writes:

“The final part of our series on the treatment of Qatari intellectual property rights in the Gulf Cooperation Council (GCC) diplomatic crisis explains the actions taken against beIN Sports beyond merely banning it and the extent to which these actions may be seen as a violation of the TRIPS Agreement - as Qatar currently claims.

The ban of beIN Sports would have certainly had economic implications on Qatar, but it is also problematic to the other countries involved in the dispute, too. Qatar is not the only GCC country invested in sports. In the UAE, Emirates Airline is heavily invested in football and has partnerships with clubs such as AC Milan, Real Madrid, Paris Saint-Germain, and Arsenal. In fact, according to its own website, the deal that Emirates signed with Arsenal Football Club in 2004 is the biggest club sponsorship in English football history. Therefore, limiting the ability to view major sporting events would go against the very investments that the UAE is making in sports, especially as the English Premier League, for which beIN Sports has the exclusive right to broadcast in the Middle East, was due to start several weeks after the diplomatic crisis began. It is therefore not surprising that the UAE changed its mind and allowed its two ISPs to restore access to beIN Sports prior to the start of English Premier League in August, even though no progress has been made in regard to the diplomatic dispute.

Saudi does not have the same investment the UAE has in football, and therefore does not have the same economic incentives to permit access to international sporting events, but the ban has been problematic to Saudi nonetheless. While one can argue that restricting access to Al Jazeera has freedom of expression implications, these implications are nominal from the perspective of Saudi users as there are hundreds of other legal outlets on the internet that users in Saudi can access to read opinions other than those sanctioned by the Saudi government. However, restricting access to beIN Sports is a much more serious concern to the members of the public in Saudi than Al Jazeera because beIN Sports has the exclusive right in the region to broadcast the most popular international sporting events, and therefore a ban on watching beIN Sports is effectively a ban on watching live sports in Saudi, including the highly popular, and soon to start at that time, English Premier League. As managing public opinion has been extremely important to all the parties involved in the diplomatic dispute, Saudi had to be careful not to make its own nationals feel harmed by the actions their government is taking against Qatar, which could have consequently made Saudi nationals less sympathetic to the drastic measures their government is taking towards their neighbour. 

While the UAE decided to bite the bullet and simply unblocked beIN Sports, things in Saudi took a different route. A signal piracy network cheekily named beoutQ emerged on the internet allowing users in Saudi to freely stream all the channels of beIN Sports. The streams of beoutQ have an overlay that covers the original logo of beIN Sports with that of beoutQ, but as the actual content is literally that of beIN Sports, any person watching would immediately figure out the real identity of the channel. There are also apparently beoutQ TV receivers already on sale in Saudi and for which subscriptions can be purchased from physical stores in Saudi starting from $15 a month. The website of beoutQ has multiple mirrors, and the website appears to use geo-blockers that allow only users from Saudi to view its streams. 

Unlike the act of merely blocking access to beIN Sports, the Saudi beoutQ is broadcasting the signal of beIN Sports without permission and is likely to be in violation of Saudi's own laws, since the rights of broadcasting organisations are protected by Article 9(2) of the Saudi Copyright Law of 2003 and Article 7(3) of the Saudi Copyright Regulations of 2004.

There is no hard evidence on who exactly is behind beoutQ. The management of beIN Sports attempted reaching out to the Saudi authorities urging them to take action, but none were taken. The initial announcement of the launch of beoutQ was published by Al Riyadh, a national Arabic newspaper in Saudi, and it was further promoted on the accounts of several prominent media and sports figures in Saudi, so there is no doubt that the authorities in Saudi are fully aware of the incident and are choosing not to take any action to stop beoutQ.

As the blockade against Qatar is still in place, Qatari nationals and their businesses are not allowed into Saudi and therefore have no access to Saudi courts to take civil action against the administrators of beoutQ website or the distributors of beoutQ receivers. Saudi is also aware of the widespread violation of the rights of Qatari rights-holders and is not taking any action to prosecute the offenders. Unlike the mere ban of Qatari intellectual property works initially, the case in Saudi has now become a failure to protect the intellectual property works of Qatari nationals and is more likely to be in violation of the TRIPS Agreement, not only in regard to Articles 3 and 4, but also in regard to substantive provisions relating to the protection of copyright right under Part II and those relating the availability of enforcement mechanisms under Part III of the TRIPS Agreement.

The first stage in Qatar's WTO complaint against Saudi, Bahrain, and the UAE required making a request for consultation, and the period for this consultation has recently expired. Qatar has now made a formal request to the WTO Dispute Settlement Body to establish a panel in regard to its complaint against the UAE (the only country that has formally declined the consultation request). 

The new Qatari request to establish a panel has more elaborate arguments in regard to intellectual property rights and is not merely based on Articles 3 and 4 of the TRIPS Agreement. The request also relies on Articles 41, 42 and 61 of Part III of the TRIPS Agreement relating to enforcement. This new request claims that the actions of the UAE are in violation the TRIPS Agreement on the grounds of the failure of the UAE to allow Qatari nationals to 'enforce' their intellectual  property rights, the failure of the UAE to 'make available' to Qatari nationals 'the civil judicial procedures concerning the enforcement of intellectual property rights', and the failure of the UAE to 'provide criminal procedures and penalties in cases of copyright piracy on a commercial scale, where the copyrights are owned by Qatari nationals'. The arguments are therefore not merely about blocking access to Qatari intellectual property works, but about blocking the access of Qatari rights-holders to the legal system that enables the enforcement of intellectual property, and the failure to prosecute those who violate Qatari intellectual property rights. The complaint also claims the violation of many other WTO obligations outside the TRIPS Agreement.

At the moment, the request to establish a panel has been made in regard to the complaint against the UAE, where beIN Sports is actually legally available through Emirati ISPs and there are no publicised incidents of the violation of any Qatari intellectual property rights, so it is not clear if these arguments have any facts on the grounds to back them up. It seems natural that Qatar will also make a similar request to establish a panel in regard to its complaints against Saudi (and Bahrain) as well, where the intellectual property rights of beIN Sports are widely infringed.”