- Christopher Martin-Jenkins, in The Times, 31 October 2012
After the considerable fight between the BCCI and the BBC with regards the amount that the BCCI want to charge the BBC for the use of media centres in India, Christopher Martin-Jenkins wrote a piece in the Times which among other things took a swipe at Testmatchsofa.com (the Sofa - found at http://www.testmatchsofa.com/)
The argument from Christopher Martin-Jenkins and indeed Johnathon Agnew et al. is that the Sofa is freeloading on broadcast rights. The legal and indeed ethical question though is far more murky.
Link to the Times article: https://twitter.com/PaddyBriggs/status/263540508910039040/photo/1/large
The Sofa positions itself as an "alternate cricket commentary". Almost from the outset of any argument which is put forward here, it must be conceded that we are not talking about a large corporation but essentially an amateur operation. The Sofa quite literally operates out of only a few rooms in London; yet somehow that scares an organisation which has 23,000 employees and revenues of £5.086 billion.
The twenty first century and the arrival of the internet has meant that even amateurs can reach an exceptionally large audience with very little outlay. On one hand I've seen the complete death of record shops on the high street but on the other, I know of a few musicians who have mastered their own music in recording studios and thanks to the ability to self-publish, have gone on to make a reasonable amount of money but not enough to call it a source of employment. To be honest even this blog which is written by me in my spare time, manages to attract 2000-4000 hits a month even if the comments I attract are sparse.
The big questions in the light of this then are: What are broadcasting rights? What do those rights entitle you to?
Broadcasting Rights in the UK (the Sofa and the BBC are in the UK), as far as the Broadcasting Act 1996 and the Communications Act 2003 are concerned seem to only extend as far as the inside of a sporting venue. I had a look at further provisions of the Broadcasting Act 1996 and specifically s97-s105 which explicitly concern sporting events, and those provisions are more concerned with television and the availability of a free to air broadcast. Nothing in either of the two acts can even prevent someone from setting up a card table outside the ground and conducting a broadcast there, except maybe the laws of trespass; and of course the laws of sanity which dictate that someone sitting outside a cricket ground with a card table and broadcasting equipment would look decidedly daft. In fact it's probably best that they do go home and do it there.
From a more professional standpoint, Australia's ABC has been doing precisely this with Roy & HG's coverage of Rugby League and the AFL Grand Final, on occasion it's been ridiculously obvious that they were making comments from the TV because they'd even occasionally comment on the adverts on Channel 9.
The question of the legality of making comments based on TV footage basically gets zero mention because it would be like trying to regulate people chatting in their own houses and broadcasting that sort of thing happens all the time on YouTube. If you want to think of an equivalent example of this, it would be like me sitting at home, listening to parliament and writing witty and pithy political commentary. There are no specific laws about this either. I could for instance watch the proceedings in Parliament from my house and set up a radio program called "Order In The House, From The Couch" however it probably wouldn't be all that popular except with die hard political junkies.
Broadcasting Rights do get you a chair and a box inside the ground and in the case of television rights, have specific provisions to be the only entity with cameras for broadcast but that seems to be it. Copyright law defends the right to profit from any footage or sound recording which is made but that extends to all radio stations and indeed anything at be it video, audio, print or text which has been published.
The Sofa is neither copying the BBC's audio; nor is it re-transmitting Sky Sports's footage of cricket. It can hardly be found to be in breach of copyright if it doesn't copy anything. As for the comment that it doesn't pay a penny to the England and Wales Cricket Board, the question can easily be answered that the ECB doesn't provide The Sofa with facilities inside the ground, so why should someone pay for a non-existant service? The Sofa already pays for its Sky Sports subscription and so really Martin-Jenkins is in effect calling for double charging.
I for instance note that Martin-Jenkins' article itself sits behind the News Corp pay-wall, so to even read his article requires a subscription. I don't know what this says exactly but I'm equally sure that the Times doesn't pay a penny to the England and Wales Cricket Board when its columnists write about the game. This to me has similarities to the defamation case of Pot vs Kettle.
This isn't even a similar situation to the days of "radio pirates". Pirate Radio stations in most cases were operating and not paying royalties for the music they were playing. A station like Radio Luxembourg for instance could broadcast from an entirely different country and provided they had paid the royalties for the music they were playing, the law could do nothing to stop them.
In the case of radio commentary, original content is being generated on a continual basis. There is in fact nothing to stop someone from doing precisely the same thing for football, or motor racing. The reason why people don't is that it takes discipline and dedication to something which for all intents and purposes, still basically an amateur thing. BlogTalkRadio which operates in the US provides a hub for these sorts of stations and has stations with diverse subjects like cookery, baseball, hiking, politics, various fandoms for TV shows and university stations.
It's not even like the BBC are above doing this themselves. Right through the 1980s, Murray Walker and James Hunt would be doing commentary on Formula One races, not at the track and not even in Television Centre but in Broadcasting House. The fledgling station Radio 5 which came along in the early 90s, rode on the coat tails of the Beeb's own footage and did their commentary from that.
I think what scares the establishment is that the views being stated are uncontrollable. The BBC likes to use its considerable might to assert its media position with regards these sorts of things, mainly because it has to. Without throwing its weight around, its competitors like Sky Sports etc. will again call for the BBC's abolition or privatisation. Given the last 30 years and the attitude of both Conservative and Labour governments to destroy every single piece of infrastructure that's still held in public hands, surely anything at the gates whatever it may be needs to be attacked, despite of the apparent threat therein both real and imagined because it's only really by dumb luck that the BBC and NHS haven't been wiped out already.
What I find rather strange is the worry that the EBC or the BBC which is funded by British licences payer anyway, should worry about a great loss of income streams. I myself live in the far flung reaches of the Commonwealth in the ex-convict colony of Australia and had it not been for the existence of the Sofa, I would not be listening to a lot of England test matches at all. The idea that someone in Australia should buy the rights to an England-India test series in India is preposterous. The theory that someone is losing a revenue stream from me when I wouldn't have been able to listen to the series otherwise is also preposterous. As it is, the BBC prevents anyone from outside the UK to listen to Five Live during test matches, football matches Formula One races, so really it's already like the BBC is giving everyone who currently isn't on the Sceptred Isle a very Steve McQueen two-fingered Longbowman Salute. It certainly is not cricket and doesn't even want you to hear the radio description of it either.
More generally both the Bill of Rights Act 1689 and Article 19 of the Universal Declaration of Human Rights defends the right to free speech. This basic right has allowed anyone to publish pretty much any sort of content in the UK with the exception of highly offensive material or material of a serious breach in national security. I hardly think that the vast bulk of waffle on the Sofa constitutes material of a nature so offensive or material so internationally sensitive that it can not be published. There is the distinct possibility that because they don't want to reveal their location on air, that they're secretly in the offices of MI6 but somehow I doubt it. I will admit that mentioning Suetonius during cricket commentary might be irrelevant but that's distinctly different. Actually most of Aggers, Blowers and CMJ have to say most of the time is waffle and irrelevant, such is the nature of a game which can take five days to play and still not acheive a result.
The real unwritten complaint that CMJ and Aggers had with the BCCI and the BBC, was that if the BBC couldn't get their box in the ground at a cheap enough price, then they were considering simply not bothering. In particular it would have meant that CMJ and Aggers would have missed out on a holiday to India and that's just unacceptable.