WTO Report - Qatar, Saudi Arabia, beIN and beoutQ
On 16 June 2020 a Panel established by the World Trade Organization’s (WTO) Dispute Settlement Body released a 125-page report (“the Report”) in respect of claims by Qatar against the Kingdom of Saudi Arabia (“KSA”) for KSA’s alleged breaches of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”).[1]
The TRIPS Agreement is one of a number of international legal agreements made between all the member nations of the WTO. The TRIPS Agreement provides for minimum standards of protection to be provided by each member state in respect of intellectual property rights and the required domestic procedures and remedies for the enforcement of intellectual property rights.
This article provides a summary of the Report, explaining the background to the dispute, what Qatar’s particular claims against KSA were and what findings the Panel made in respect of these. This article also provides this author’s opinion on whether the Report affects a conclusion reached in an earlier article for Football Law that analysed the reported takeover of Newcastle United FC and the application of the FA Premier League's Owners' and Directors' Test.
Qatar’s claims against KSA
Factual Background
The factual background to the case is provided in Section 2 of the Report, which firstly details KSA’s broadcasting and copyright laws, which are summarised as follows:
KSA’s Ministry of Media (“MoM”) and General Commission of Audio and Visual Media (“GCAM”) are the government entities in charge of any broadcast, publication, and distribution of, inter alia, visual and audio media content and the granting of media licenses in KSA for broadcast and distribution using media channels, which includes broadcast signals via satellites.[2]
All television and media channels operating in KSA must obtain all required licences from the relevant authorities (i.e. MoM and GCAM) which may permit operation in the media field. To be licensed as a broadcaster, an entity must satisfy criteria specific to the broadcasting business. Further, that entity must also observe the laws of KSA, including, inter alia, copyright law, publications law, competition law and criminal law.[3]
KSA’s Copyright Law[4] and Implementing Regulations[5] are administered by MoM.
Professional sports broadcasts constitute protected ‘works’ under the provisions of the Berne Convention as incorporated into the TRIPS Agreement and are covered by the definition of ‘Audio-Visual Work’ under article 1 of the Copyright Law.[6]
Pursuant to article 18 of the Copyright Law the scope of the Copyright Law covers works of ‘broadcasting organisations’, and pursuant to article 18 of the Implementing Regulations, broadcasting organisations have ‘the right to prohibit any of the following acts if taken without their authorisation: … reproduction of broadcasts… [retransmission] by wireless means and communication of materials to the public.[7]
Article 9 of the Copyright Law provides the author of the Works and/or Audio-Visual Works the right, or whoever the author delegates the right, to communicate ‘the work to the public via any possible means, such as displaying, acting, broadcasting or data transmission networks’.[8]
Article 13 of the Implementing Regulations states that ‘use beyond that specified by the owner of audio, visual and broadcasting works shall be deemed an infringement of copyright’, which includes (i) ‘communication [of] the work to the public without obtaining a prior licence from the owners of the copyright’ and (ii) ‘[b]reaking of protective barriers for the purpose of presenting broadcasting materials through illegal means’.[9].
Article 20 of the Implementing Regulations states that ‘officials of the General Department of Copyright [(“GDC”)] in Riyadh and its branches in [KSA’s] province… [are] responsible for the task of detecting violations and securing the evidence proving the existence of an infringement of copyright’.[10] If such evidence is obtained then pursuant to Articles 21, 23 and 25 of the Implementing Regulations the GDC will analyse the evidence and produce a report, an investigating officer will conduct an investigation and, once those two steps are completed, the GDC will then refer the matter to a Copyright Committee.[11]
The Copyright Committee adjudicates on the allegations of copyright infringement referred to it, taking decisions by way of a majority vote but which is ‘subject to a subsequent layer of approval before it is made final’.[12] At the time of the Panel being formed, that final approval came from KSA’s Minister of Culture and Information (“the Ministerial Approval Requirement”).[13] (KSA has since changed who provides final approval from the Minister of Culture and Information to the Board of Directors of the Saudi Authority for Intellectual Property (“SAIP”), as explained at [2.13] of the Report.)
Section 2 of the Report then explains the ‘serious deterioration of relations between [KSA], Qatar and certain other countries from the [Middle East and North Africa (“MENA”)]’[14], which is summarised as follows:
KSA explained that since 2011 ‘the security situation in many countries in the [MENA] region has been unstable, with wars, terrorism, and instability prevailing in many places for many different reasons, causing a devastating effect on human life and on the stability of national governments and multiple crises in international relations’.[15]
The Gulf Cooperation Council (“GCC”) – established by, inter alia, KSA, Qatar, the UAE, Bahrain and Kuwait in 1981 – works to ‘uproot the sources of instability in [the MENA] region’. In November 2013 Qatar, the UAE, Bahrain and Kuwait signed the First Riyadh Agreement ‘which established a collective understanding of the causes for, and solutions to, instability and violence in the [MENA] region’, and which obliged those signatories to, inter alia, (i) not interfere in the internal affairs of the GCC states; and (ii) not support the Muslim Brotherhood or similar that threaten the security of the GCC states.[16]
On 5 March 2014 KSA, UAE and Bahrain withdrew their ambassadors from Qatar on the basis that Qatar had not complied with the First Riyadh Agreement.[17]
A further agreement, The Mechanism Implementing the Riyadh Agreement, was signed by all GCC counties on 17 April 2014 and provided implementation procedures regarding, and reaffirming, the obligations contained in the First Riyadh Agreement, and included the following: ‘[i]f any country of the GCC Countries failed to comply with this mechanism, the other GCC Countries shall have the right to take [any] appropriate action to protect their security and stability’.[18]
On 16 November 2014 the GCC countries entered the Supplementary Riyadh Agreement, which state that GCC countries agreed to, inter alia, not to give refuge or to support any person or media that ‘harbours inclinations harmful to any [GCC] state’ and to cease ‘all media activity directed against… Egypt’.[19]
The Supplementary Riyadh Agreement resulted in KSA, the UAE and Bahrain returning their ambassadors to Qatar.[20] However, KSA asserted that between November 2014 and June 2017 Qatar violated the terms of the Supplementary Riyadh Agreement by, inter alia, supporting and harbouring extremist individuals and organisations and allowing the same to spread their messages by use of Qatari-based and sponsored media platforms.[21]
In the meantime, on 19 February 2017, Qatar’s Foreign Minister sent a letter to the Secretary General of the GCC calling for termination of the Supplementary Riyadh Agreement, which KSA considered to be a repudiation by Qatar of its obligations under the Supplementary Riyadh Agreement.[22]
KSA asserted that those developments, a consideration of its essential security interests and a need to protect its interest were the reasons for KSA deciding on 5 June 2017 to (i) sever all diplomatic and consular relations with Qatar; (ii) the closure of all ports; (iii) preventing Qatari nationals from crossing into KSA territory; and (iv) the expulsion of Qatari visitors in KSA territory (“the Severance”).[23]
Section 2 and other referenced sections of the Report also explain the operations of and the circumstances between beIN Media Group LLC (“beIN”) and beoutQ, which are summarised as follows:
beIN holds licences to broadcast content produced by major international rights holders, including the FA Premier League, UEFA and FIFA, to broadcast and to authorise to broadcast in the MENA, including exclusive rights in KSA.[24] beIN’s revenues are largely generated from subscriptions to its television packages. KSA is the largest market in the MENA.
beIN also owns the rights to prohibit unauthorised reproductions and rebroadcasting by wireless means of broadcasts of the content for which it is the licensee.[25]
Following the Severance, KSA’s Ministry of Culture and Information and KSA’s GCAM blocked beIN’s website in KSA, and on 19 June 2017 issued a ‘Circular’ (“the Circular”) which stated, inter alia, that ‘beIN was not licensed to distribute media content, and did not have the right to operate, in [KSA]’ and:
‘Any distribution of media content either… in [KSA] without obtaining the necessary licenses from the appropriate authorities… shall subject the distributors of such media content and content licensors… to criminal prosecution and personal litigation and shall result in the imposition of penalties and fines and the loss of the legal right to protect any related intellectual property rights in accordance with the applicable laws in [KSA]’ (emphasis added).[26]
On 11 July 2017 KSA’s Monetary Authority issued a decision suspending ‘all monetary operations in all methods of payment either through credit cards [etc]… to [beIN] for new subscriptions or any renewals in its channels or services’.[27]
Qatar asserted that in August 2017 beIN continued to broadcast in the MENA but that beoutQ also began the unauthorised distribution and streaming of content created by or licensed to beIN. In particular, beoutQ illegally streamed and broadcasted the contents of beIN’s sports channels, replacing beIN’s logo with that of beoutQ, and then also moved into selling beoutQ-branded set-top boxes (“STBs”) throughout KSA and other countries.[28] The STBs receive satellite broadcasts of the pirated content. beoutQ also offered advertising packages on its pirate channels, including one set called the ‘Premier League “gold packages”’.
Qatar asserted that KSA had (i) imposed measures after the Severance which subjected KSA-based lawyers to ‘legal jeopardy’ if they expressed support for and/or assistance to Qatar and Qatari nationals (“Anti-Sympathy Measures)” and (ii) had promoted beoutQ’s public screening of some matches of the 2018 FIFA World Cup.[29]
Qatar’s claims
Upon that factual background, Qatar argued the following points[30]:
The Circular stripped beIN of the legal right to protect any intellectual property (“IP”) rights related to the beIN channels;
The Anti-Sympathy Measures prevented beIN from securing legal representation needed to access civil enforcement procedures against the infringement of its IP rights;
The Severance’s travel restrictions prevented beIN from initiating procedures and testifying in person for any civil enforcement procedures against the infringement of its IP rights;
The Ministerial Approval Requirement prevented beIN from being able to access civil and criminal enforcement procedures against the infringement of its IP rights;
KSA had promoted public gatherings of screenings of beoutQ’s unauthorised broadcasts and had failed to apply criminal procedures and penalties against beoutQ, it being asserted by Qatar that ‘the reason that criminal procedures and penalties have not been applied against beoutQ is that the Saudi government itself has supported, facilitated and participated in the beoutQ piracy’;
KSA are in breach of article 3.1. of the TRIPS Agreement for according Qatari nationals less favourable treatment than KSA nationals with regard to the protection of IP rights.
KSA are in breach of article 4 of the TRIPS Agreement for, in regard to protection of IP rights, failing to extend to Qatari nationals advantages granted to nationals of other countries
KSA are in breach of article 9 of the TRIPS Agreement for failing to provide beIN the exclusive rights, inter alia, to authorise the broadcasting of their works.
KSA are in breach of article 14(3) of the TRIPS Agreement for failing to, inter alia, provide beIN the right to prohibit the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same.
KSA are in breach of article 41.1 of the TRIPS Agreement for failing to make available to Qatari nationals enforcement procedures stated in Part III of the TRIPS Agreement.
KSA are in breach of article 42 of the TRIPS Agreement for failing to make available to Qatari nationals civil judicial procedures concerning the enforcement of intellectual property rights, including inter alia the right to be represented by independent legal counsel.
KSA are in breach of article 61 of the TRIPS Agreement for failing to provide for the application of criminal procedures and penalties to beIN’s copyrighted work.
Pursuant to article 19.1 of the Dispute Settlement Understanding (“DSU”), which is the main WTO agreement on settling disputes, the Panel recommend KSA bring its measures into conformity with the TRIPS Agreement.
The Report emphasises the burden upon Qatar in its claims:
‘It is for the complainant to make a prima facie case, which involves establishing the existence of the challenged measures and the other factual premises underlying its claims, as well as the breach of the legal provisions invoked by the complainant… While WTO-inconsistent conduct may not be lightly presumed, and must always be supported by sufficient evidence, the applicable evidentiary standard of proof in WTO dispute settlement proceedings is closer to that of the balance of probabilities, and is not a standard of certainty or proof beyond a reasonable doubt… As a consequence of the applicable evidentiary standard being closer to that of a balance of probabilities, panels may make findings of fact based on inferences and circumstantial evidence’.[31]
KSA’s arguments against Qatar’s claims
KSA argued against Qatar on the following bases[32]:
beIN had not lost the right to protect its PI rights by virtue of the Severance or the Circular. KSA also argued that ‘no credible evidence exists to link such [pirate] distribution to the wilful conduct of companies of [Qatar] or related entities’, which was also the reason for KSA’s non-application of criminal procedures or penalties against beoutQ.
KSA did not ‘maintain’ the Anti-Sympathy Measures or any other measures that restricted access to lawyers in KSA for assistance in protection of IP rights. Further, and in any event, KSA argued that there is no need to instruct lawyers as information can be provided to the relevant government bodies directly.
KSA noted that beoutQ ‘does not have a location in [KSA], and its location outside [KSA] cannot be ascertained’ and this could be the reason why no law firm in KSA proceeded with a case against beoutQ in KSA courts.
Foreign nationals could still enforce their PI rights in KSA without physically travelling to or being present in KSA by contacting the relevant government bodies by email.
The Ministerial Approval Requirement had been replaced with approval being obtained from the Board of Directors of the SAIP (as referred to above).
KSA had not promoted public screenings of beoutQ’s content, submitting that the government of KSA ‘does not promote or authorize screenings of beoutQ broadcasts, and has no relationship at all with beoutQ’.
The Panel’s findings
The Panel’s findings of fact
Considering Qatar’s and KSA’s arguments, and in consideration of the evidence put before it, the Report identifies that the Panel made three findings in respect of the claims made by Qatar against KSA.
Firstly, in respect of beIN’s access to civil enforcement procedures:
The Panel concluded that despite some criticisms of the evidence relied upon by Qatar to support the existence of the Anti-Sympathy Measures, ‘the evidence establishes the existence of the general anti-sympathy measures that directly or indirectly fostered a climate of anti-sympathy against Qatar and Qatari nationals’.[33]
The Panel noted that Qatar had provided considerable evidence indicating that KSA law firms’ refusal to act in relation to any proceedings against beoutQ, including letters sent by beIN to KSA’s Ministry of Culture and Information (“MCI”) and a joint public statement from rights holders, inter alia, FIFA, UEFA, the FA Premier League and the Bundesliga.[34]
The Panel noted that there was no evidence to support KSA’s submission that the absence of knowledge of the location of beoutQ was the reason why KSA law firms had not proceeded with a case against beoutQ.[35]
Alongside the Anti-Sympathy Measures, the Panel considered that the Circular’s reference to the ‘loss of the legal right to protect any related [IP] rights in accordance with the applicable laws in [KSA]’ was an action aimed at ‘influencing… [law firms’] engagements with beIN’.[36] Moreover, evidence provided by Qatar demonstrated that KSA’s Council of Competition (“CoC”) had threatened one KSA law firm into accepting service from CoC of a criminal case against beIN and the Panel considered this ‘reflects the influence the Government of [KSA] has over the decisions of lawyers based in [KSA] to accept particular cases for particular clients’.[37]
As such, the Panel was satisfied that KSA had imposed Anti-Sympathy Measures that ‘have had the result of preventing beIN from obtaining [KSA] legal counsel to enforce its IP rights’.[38]
The Panel was also satisfied that the Circular, the Severance and the Ministerial Approval Requirement existed and amounted to a ‘government measure’ and that ‘each of these formal legal restrictions could impact beIN’s ability to access civil enforcement procedures’.[39] However, the Panel also found:
The Circular and its penalty of a ‘loss of the legal right to protect any related [IP] rights’ took effect only upon a broadcaster distributing content without licensed authorisation and there was no evidence to suggest that the Circular had yet been applied to beIN;[40]
beIN nor any other rights holder had started civil enforcement proceedings against beoutQ before KSA courts and it was speculative to suggest that a KSA court would apply the terms of the Circular and that the Severance would prevent beIN’s ability to access civil enforcement procedures in KSA;[41] and
There was nothing preventing the ‘initiation’ of proceedings before the Copyrights Committee pursuant to KSA’s Copyright Law and Implementing Regulations notwithstanding the Panel’s acceptance of the existence of the Ministerial Approval Requirement (which comes at the end of matters before the Copyrights Committee’s not at the initiation).[42]
Accordingly, the Panel concluded and found on the issue of beIN’s access to civil enforcement procedures that:
Qatar had not proved that the Circular, the Severance and the Ministerial Approval Requirement prevented or would prevent beIN from accessing civil enforcement procedures before KSA Courts; and
Qatar had proved that KSA had taken Anti-Sympathy Measures that resulted in preventing beIN from securing legal representation to enforce IP rights.[43]
Secondly, in respect of the non-application of criminal procedures and penalties:
The Panel considered correspondence between (i) beIN and other rights holders, including UEFA, BBC, and the MCI and GCAM; and (ii) beIN and other rights holders, including the FA Premier League, UEFA and FIFA, and Arabsat, [44] from which it is noted:
Tweets were posted from ‘prominent Saudi nationals’ (Mr Saoud Al-Qhatani, then counsel for the KSA Royal Court, Mr Abdulaziz al-Mriseul, then general manager of the Al Riyadh Newspaper, and the Al Riyadh newspaper itself) supporting and promoting beoutQ.[45] The Panel referred to those Tweets ‘not because they are attributable to the Government of [KSA], but because they are evidence that beoutQ was promoted by prominent individuals and newspapers within [KSA], which is relevant to the question of whether beoutQ is operated by individuals or entities subject to the criminal jurisdiction of [KSA]’ (emphasis added).[46]
beIN had evidence, which it had provided to the relevant KSA government bodies, that beoutQ’s websites were only accessible in KSA, that beoutQ’s STBs were widely available throughout KSA and that beoutQ produced advertisements showing prices for beoutQ pirate content in KSA’s currency.[47]
Arabsat ‘is an intergovernmental organization and satellite operator whose largest shareholder is the Government of [KSA] (with a stake of 36.6%) and whose CEO is a [KSA] national’.[48] beIN had submitted four technical reports to the relevant KSA government bodies that demonstrated that Arabsat transmitted beoutQ’s pirate channels to beoutQ’s STBs in KSA. Two of those technical reports and others were provided to the Panel and considered in detail,[49] which the Panel considered ‘demonstrate that beoutQ’s pirated broadcasts are transmitted via Arabsat’s satellite frequencies’.[50]
Saudi Selevision Company LLC (“Selevision”) is a KSA-based entity and beIN’s former content distributor in KSA.[51]. beIN had submitted evidence to the relevant KSA government bodies demonstrating that Selevision was also involved with the broadcast of pirate channels, and which was made available to the Panel.[52] In particular, this evidence demonstrated that Selevision had been renting frequencies from Arabsat that were used to broadcast beoutQ’s pirate channels.
Accordingly, the Panel concluded and found on the issue of non-application of criminal procedures and penalties that:
beoutQ’s piracy was promoted by KSA nationals;
beoutQ targets the KSA market;
beoutQ has received assistance from a KSA content distributor in delivering pirated broadcasts to KSA consumers; and
Considering those findings collectively, Qatar ‘established a prima facie case that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of KSA’.[53]
Thirdly, in respect of public screenings of beoutQ’s broadcasts:
Qatar had provided evidence that showed, inter alia, (i) the existence of a KSA government-sponsored event broadcasting ‘beoutQ’s pirated broadcast of the Saudi Arabia/Uruguay match on large public screens in Riyadh’; (ii) ‘an announcement by the [KSA] Ministry of Municipal and Rural Affairs… stating “294 screens in Municipal gardens and squares to broadcast World Cup Games”’; and (iii) Tweets from eight KSA municipalities promoting public screenings of broadcasts of 2018 FIFA World Cup matches, ‘several of which included images of beoutQ’s pirated broadcasts’.[54]
KSA’s submission that ‘[KSA] does not promote or authorize screenings of beoutQ broadcasts’ was insufficient by itself to rebut Qatar’s evidence, and KSA had not provided evidence to rebut that evidence from Qatar.
Accordingly, the Panel concluded and found on the issue of public screenings of beoutQ’s broadcasts that:
KSA ‘promoted public gatherings with screenings of beoutQ's unauthorized broadcasts of 2018 World Cup matches’.[55]
Taking those three conclusions and findings, the Panel reached the following overall conclusion on those three above-stated issues:
‘… although Qatar did not demonstrate the existence of formal legal restrictions being applied to prevent beIN from accessing civil enforcement procedures, Qatar otherwise established that the non-initiation of civil enforcement procedures against beoutQ before Saudi tribunals by beIN, the non-application of criminal procedures or penalties against beoutQ by the Government of Saudi Arabia and the public screening of beoutQ's illegal broadcasts of 2018 World Cup matches in Saudi Arabia are all the result of acts and omissions attributable to Saudi Arabia’.[56]
The Panel’s findings in respect of the TRIPS Agreement
Following those findings, the Report identifies that the Panel then made the following findings in respect of Qatar’s claims that KSA is in breach of those above-stated articles of the TRIPS Agreement:
beIN is a ‘right holder’ for the purposes of articles 41.1 and 42 of the TRIPS Agreement and beIN’s sports broadcasts constitute protected ‘works’ for the purposes of the Berne Convention as incorporated into the TRIPS Agreement. Further, and following the Panel’s findings in respect of the Anti-Sympathy Measures, the Panel found that ‘[KSA] acted in a manner inconsistent with Article 42 and Article 41.1 of the TRIPS Agreement by taking measures that, directly or indirectly, have had the result of preventing beIN from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts’;[57]
The Panel had found that Qatar had established a prima facie case that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of KSA and that beIN and other rights holders repeatedly sent detailed information to the relevant KSA government bodies. The Panel had also found that KSA had failed to take action that would lead to the application of criminal procedures and penalties, despite KSA’s argument that there was ‘no credible evidence’. The Panel therefore found that ‘notwithstanding that [KSA’s] written law may provide for criminal penalties and procedures to be applied to cases of wilful copyright piracy on a commercial scale, its authorities have acted inconsistently with the obligation in the first sentence of Article 61 to "provide for criminal procedures and penalties to be applied" to the operations of beoutQ. The Panel therefore concludes that [KSA] has acted inconsistently with Article 61 of the TRIPS Agreement’.[58]
Considering the Panel’s findings concerning articles 41.1, 42 and 61 of the TRIPS Agreement, the Panel was not presented with any reason why any breaches of articles 3.1, 4, 9 and 14.3 of the TRIPS Agreement would persist if KSA ‘brought its anti-sympathy measures and non-application of criminal procedures and penalties into conformity with its obligations under [articles 41.1, 42 and 61 of the TRIPS Agreement]’.[59] Accordingly, no findings were made in respect of Qatar’s claims pursuant to articles 3.1, 4, 9 and 14.3 of the TRIPS Agreement.[60]
A claim by KSA
In addition to those claims and findings, KSA claimed reliance on article 73(b)(iii) of the TRIPS Agreement, which states:
‘Nothing in this Agreement shall be construed:
…
(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests… (iii) taken in time of war or other emergency in international relations…’ (emphasis added).
In particular, the KSA Sought a decision from the Panel that the Anti-Sympathy Measures that, directly or indirectly, resulted in preventing beIN from obtaining KSA legal representation to enforce its IP rights through civil enforcement procedures in KSA courts and/or KSA’s refusal to provide for criminal procedures and penalties to be applied to beoutQ constitute an action falling within article 73(b)(iii) of the TRIPS Agreement.[61]
KSA submitted the following in support of its claim under article 73(b)(iii) of the TRIPS Agreement:[62]
The Severance demonstrates by itself that an ‘emergency in international relations’ existed, as the Severance is ‘the ultimate State expression of the existence of an emergency in international relations’, which was also to be considered at the time and in the circumstances of KSA’s understanding that Qatar had repudiated the Supplementary Riyadh Agreement.
KSA’s ‘essential security interests’ are shown by KSA protecting itself against ‘the dangers of terrorism and extremism’ and the ‘protection of [KSA] citizens, territory and government from terrorism and extremism’.
Qatar argued against KSA’s claim by submitting, generally, that KSA’s claim was a ‘mere political or economic’ dispute and that KSA has failed to identify its ‘essential security interests’ with sufficient clarity or veracity.[63]
The Panel agreed with KSA’s submission that the Severance demonstrates by itself that an ‘emergency in international relations’ existed, as the Severance is ‘the ultimate State expression of the existence of an emergency in international relations’.[64] The Panel also recognised that the KSA’s understanding that Qatar had repudiated the Supplementary Riyadh Agreement ‘constitutes further evidence of the grave and serious nature of the deterioration and rupture in relations between [Qatar and KSA], and is also explicitly related to [KSA’s] security interests’.[65] The Panel also noted that beoutQ did not commence its pirate broadcasting until August 2017, whereas the Severance occurred on 5 June 2017.[66] Accordingly, the Panel found that the Anti-Sympathy Measures and/or KSA’s refusal to provide for criminal procedures and penalties to be applied to beoutQ were ‘taken in time of war or other emergency international relations’.[67]
The Panel also agreed that KSA’s submission in respect of ‘essential security interests’ was sufficient, but that this still required an assessment of whether there was a link between the actions (i.e. the Anti-Sympathy Measures that, directly or indirectly, resulted in preventing beIN from obtaining KSA legal representation to enforce its IP rights through civil enforcement procedures in KSA courts and/or KSA’s refusal to provide for criminal procedures and penalties to be applied to beoutQ) and the protection of its essential security interests.[68] The test applied by the Panel to make a finding on these actions was whether they ‘meet a requirement of plausibility in relation to the preferred essential security interests’.[69]
In respect of the Anti-Sympathy Measures that, directly or indirectly, resulted in preventing beIN from obtaining KSA legal representation to enforce its IP rights through civil enforcement procedures in KSA courts, the Panel found:[70]
The Anti-Sympathy Measures that denied Qatari nationals access to civil remedies through KSA courts ‘may be viewed as an aspect of [KSA’s] umbrella policy of ending or preventing any form of interaction with Qatari nationals. Given that [KSA] imposed a travel ban on all Qatari nationals from entering the territory of [KSA] and an expulsion order for all Qatari nationals in the territory of [KSA]… it is not implausible that [KSA] might take other measures to prevent Qatari nationals from having access to courts [in KSA]’.
Further, ‘it is not implausible that, as part of its umbrella policy… [KSA] might take various formal and informal measures to deny [KSA] law firms from representing or interacting with Qatari nationals for almost any purpose’.
Accordingly, the Panel found on this point that ‘the anti-sympathy measures "meet a minimum requirement of plausibility in relation to the proffered essential security interests, i.e. that they are not implausible as measures protective of these interests"’.
In respect of KSA’s refusal to provide for criminal procedures and penalties to be applied to beoutQ, the Panel found:[71]
‘… the same conclusion cannot be reached regarding the connection between [KSA’s] stated essential security interests and its authorities’ non-application of criminal procedures and penalties to beoutQ’.
There was no discernible ‘basis for concluding that the application of criminal procedures or penalties to beoutQ would require any entity in Saudi Arabia to engage in any form of interaction with beIN or any other Qatari national’, particularly considering the provision of evidence from other rights holders, such as the FA Premier League, UEFA and FIFA.
Accordingly, the Panel found on this point that ‘the non-application of criminal procedures and penalties to beoutQ does not have any relationship to [KSA’s] policy of ending or preventing any form of interaction with Qatari nationals’ and that ‘the non-application of criminal procedures and penalties to beoutQ does not "meet a minimum requirement of plausibility in relation to the proffered essential security interests, i.e. that they are not implausible as measures protective of these interests"’.
Following those findings, the Report identifies that the Panel then made the following conclusive findings in respect of KSA’s claim under article 73(b)(iii) of the TRIPS Agreement:
‘[The] requirements for invoking Article 73(b)(iii) are met in relation to the inconsistency with Article 42 and Article 41.1 of the TRIPS Agreement arising from the measures that, directly or indirectly, have had the result of preventing beIN from obtaining [KSA] legal counsel to enforce its IP rights through civil enforcement procedures before [KSA] courts… The Panel also finds that the requirements for invoking Article 73(b)(iii) are not met in relation to the inconsistency with Article 61 of the TRIPS Agreement arising from [KSA’s] non-application of criminal procedures and penalties to beoutQ’.[72]
The result
The Report has been welcomed by FIFA and UEFA. However, it is important to note that the Report has not yet been formally adopted by the WTO’s Dispute Settlement Body. Accordingly, as the WTO’s panel process indicates, the clock has not yet started running for the implementation of any recommendations made in the Report.
Nevertheless, the upshot of the Report is:
KSA is required to ‘bring its measures into conformity with its obligations under the TRIPS Agreement’.[73] Those ‘measures’ are (i) the Anti-Sympathy measures that resulted in preventing beIN from obtaining KSA legal counsel to enforce its IP rights through civil enforcement procedures before KSA courts contrary to article 41.1 and 42 of the TRIPS Agreement; and (ii) KSA failing to apply criminal procedures and penalties to beoutQ despite the evidence establishing prima facie that beoutQ is operated by individuals or entities under the jurisdiction of KSA contrary to article 61 of the TRIPS Agreement;
However, KSA is not required to bring into conformity measure (i) because KSA established that measure (i) satisfied 73(b)(iii) of the TRIPS Agreement and therefore KSA is not prevented from continuing with measure (i);
To bring measure (ii) into conformity with the TRIPS Agreement, KSA will be required to apply its criminal procedures and penalties, which it is understood will be in accordance with the procedure provided for KSA’s Copyright Law and Implementing Regulations, as explained above; and
There was no finding or identification that the KSA government or any individual was responsible for the broadcasting of beoutQ’s piracy but Qatar merely ‘established a prima facie case that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of KSA’.
Newcastle United FC Takeover
An article from Football Law has already provided analysis of the supposed, reported takeover of Newcastle United FC by Amanda Staveley, Reuben Brothers, and the Kingdom of Saudi Arabia’s Public Investment Fund (“KSA PIF”) and the requirements of the FA Premier League’s Owners’ and Directors’ Test (“ODT”). This author’s conclusion in that article was, based on what is known and as set out in that article, the ODT would not prevent KSA PIF from being a Director (as defined in the Premier League rules and explained in that article).
Following the Report as explained above, it is still this author’s opinion – again, and it must be emphasised, based upon what is known in the earlier article – that the ODT would not prevent KSA PIF from being a Director. The Report does not inculpate the KSA PIF for beoutQ’s piracy.
Footnotes
[1] Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, WT/DS567/R 16 June 2020.
[2] Ibid. [2.2].
[3] Ibid. [2.3].
[4] Copyright Law, Royal Decree No. M-41 of 2 Rajab, 1424, 30 August 2003.
[5] Implementing Regulations of Copyright Law, Minister of Culture and Information's decision No. (1688/1), 29 May 2004 and amended by decision No. (1640) , 22 June 2005.
[6] (n1), [2.6].
[7] Ibid, [2.8].
[8] Ibid, [2.5].
[9] Ibid, [2.7].
[10] Ibid, [2.9].
[11] Ibid, [2.9].
[12] Ibid, [2.10].
[13] Ibid, [2.11]-[2.12] and [7.79]-[7.80].
[14] Ibid, [2.16].
[15] Ibid, [2.19].
[16] Ibid, [2.20]-[2.21].
[17] Ibid, [2.22].
[18] Ibid. [2.23].
[19] Ibid. [2.24].
[20] Ibid. [2.25].
[21] Ibid. [2.25] and [2.27].
[22] Ibid, [2.26].
[23] Ibid, [2.16]-[2.18] and [2.28]-[2.29].
[24] Ibid, [2.31]-[2.33].
[25] Ibid, [2.34]-[2.35].
[26] Ibid, [2.36]-[2.37] and [7.68].
[27] Ibid, [2.38].
[28] Ibid, [2.40]-[2.43]; see also [7.99]-[7.111].
[29] Ibid, [2.47b], [2.47f], [7.37], [7.44] and [7.158]-[7.163].
[30] Ibid, [2.47], [3.1] and [7.42]-[7.44]; cf. [7.38].
[31] Ibid, [7.39]; see also [7.48]-[7.51].
[32] Ibid, [7.45]-[7.47].
[33] Ibid, [7.58]-[7.59].
[34] Ibid, [7.60]-[7.65].
[35] Ibid, [7.66].
[36] Ibid, [7.68].
[37] Ibid, [7.70]-[7.71].
[38] Ibid, [7.72]-[7.73].
[39] Ibid, [7.74]-[7.81].
[40] Ibid, [7.82]-[7.85].
[41] Ibid, [7.86]-[7.90].
[42] Ibid, [7.91]-[7.93].
[43] Ibid, [7.94]-[7.95].
[44] Ibid, [7.99]-[7.154].
[45] Ibid, [7.113]-[7.116].
[46] Ibid, [7.117].
[47] Ibid, [7.119]-[7.122].
[48] Ibid, [7.131].
[49] Ibid, [7.132]-[7.148].
[50] Ibid, [7.149].
[51] Ibid, [7.150].
[52] Ibid, [7.151]-[7.153].
[53] Ibid, [7.155].
[54] Ibid, [7.158].
[55] Ibid, [7.159]-[7.163].
[56] Ibid, [7.164].
[57] ibid, [7.199].
[58] Ibid, [7.221].
[59] Ibid, [7.224]-[7.225].
[60] Ibid, [7.228].
[61] Ibid, [7.229]; see also [7.265] and [7.269].
[62] Ibid, [7.232]-[7.234].
[63] Ibid, [7.235]-[7.237].
[64] Ibid, [7.259].
[65] Ibid, [7.263].
[66] Ibid, [7.269].
[67] Ibid, [7.270].
[68] Ibid, [7.279]-[7.282]; see also [7.265].
[69] Ibid, [7.285].
[70] Ibid, [7.286]-[7.288].
[71] Ibid, [7.289]-[7.293].
[72] Ibid, [7.294].
[73] Ibid, [8.3].
17 June 2020