April 2014, the Cairo Economic Court (the “Court") issued a seminal
judgment declaring the broadcasting of a football match a sovereign act of State.
v. the Minister of Culture, Minister of Information, and the Chairman of the
Board of Directors of the Radio and Television Union, a case registered
under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”)
Egyptian Radio and Television Union (“ERTU” or the “Union”) et
al. (collectively, the “Respondents”) seeking compensation for
material and moral damages amounting to three (3) million USD, in addition to
interest, for their alleged breach of the Plaintiff’s exclusive right to
broadcast a World Cup-qualification match in Egypt. Al-Jazeera obtained such
exclusive right through an agreement it signed with Sportfive, a sports marketing company that had
right to broadcast Confederation of African Football (“CAF”) World
reportedly broadcasted the much-anticipated match between Egypt and Ghana live on
15 October 2013 without obtaining Al-Jazeera’s written approval, in violation
of the Plaintiff’s intellectual property rights.
of the Parties
Plaintiff explained that its right was protected by various provisions of Law
No. 82/2002 on the Protection of Intellectual Property Rights (the “IP
Law”). Most notably, the Plaintiff referred to Article 139, which provides for
copyright protection for both Egyptians and citizens of World Trade
Organization member States, and Article 149, which grants copyright owners the
right to transfer, in writing, all or some of their rights in the copyrighted
content to third parties.
addition, the Plaintiff stated that Articles 157, 158 and 159 of the IP Law gave
it exclusive economic rights in the content it owned or acquired, which precludes
the exploitation of broadcasting the match in any manner (including its
reproduction and communication to the public) by a third party without its
prior written authorization.
broadcasting the match live on Egyptian channels without obtaining the Al-Jazeera’s
prior written authorization, ERTU - the Plaintiff argued - breached the Plaintiff’s
intellectual property rights that are protected under Egyptian and
Respondents emphasized the political nature of the decision to broadcast the
match. They argued that Egypt’s executive branch of government was entitled to
take decisions respecting the broadcasting of the match in the interest of
Egypt, and its peace and security, without incurring any penalty or enduring
judicial scrutiny. The Respondents added
that broadcasting the match was an activity that took place entirely within
Egypt pursuant to an executive decision and, as such, was an act of State that
was immune to judicial scrutiny. Accordingly, broadcasting the match did not
violate any laws or agreements.
Court began its assessment of the case by examining its jurisdiction in
accordance with Article 109 of the Code of Civil and Commercial Procedures,
which grants courts the power to rule on their own jurisdiction in any case
before them. Then, it consulted Law No. 13
/1979 relating to the Egyptian Radio and Television Union, as amended
(the “ERTU Law”), which provided for the establishment of a
national authority under the name of “Egyptian Radio and Television Union”. Among other things, the ERTU Law states that the
Union is (i) deemed a national authority that assumes all the functions and
duties associated with audio-visual media and broadcasting services in Egypt;
(ii) shall have a separate juridical personality; and (iii) shall be subordinated
to the Minister of Information.
Court established that the decision to broadcast this match was issued by ERTU,
a national authority entitled to broadcast audio-visual media in Egypt for the
purpose of achieving national interests and services, and ensuring collective
interest in all aspects including sports.
this background, the Court concluded that the Union’s decision to broadcast the
match fell within the Union’s mandate, which was to be exercised on Egyptian
territory and without interfering with the sovereignty or law of another state. Therefore, the decision to broadcast the game
was, in the opinion of the Court, an act of sovereignty that may not be the subject
of litigation; and the executive authority was permitted to take all necessary measures
in Egypt’s interests, while enjoying immunity against court supervision.
that it lacked jurisdiction, the Court did not address the Plaintiff’s claims
relating to its intellectual property rights.
Learned and Next Steps
judgment raises several questions regarding the scope of sovereign powers that
can be exercised by a State. Most
importantly, it provides a novel interpretation of what constitutes an act of
State. Furthermore, the decision will likely push companies entering into broadcasting
agreements with the Union to take various precautions, such as subjecting potential disputes to international
arbitration, as opposed to the supervision of local courts.
judgment comes as another blow to Al-Jazeera in Egypt, which saw three of its
journalists sentenced by an Egyptian court to prison terms ranging from seven (7)
to ten (10) years for charges that included spreading false news. One of the journalists,
Peter Greste, has
already been deported to his native Australia pursuant to a decree law that
allows the deportation of foreigners to their home countries to stand trial or
serve the remainder of their sentence.
The other journalists have been released on bail and are currently awaiting
after the Court of Cassation, Egypt’s highest court, quashed their sentence.
June 2014, Al-Jazeera appealed the Court’s decision to the Court of Cassation,
explaining that a sovereign act of State can be easily distinguished from
regular administrative activities such as the ones typically performed by the
Union. According to Al-Jazeera, an act
of State covers high political considerations, such as the protection of national
interests, upholding the terms and principles of the Constitution, and
overseeing Egypt’s relations with other States to ensure domestic and international
peace and security. A football match does not meet any of these criteria.
is likely that the Court of Cassation will overturn the Court’s judgment in
light of Egypt’s IP Law and the fact that broadcasting and licensing agreements
are a regular business activity. It is
also important to observe how the Court of Cassation will address the lower
Court’s novel interpretation of the act of State doctrine. While soccer is the
most popular sport in Egypt, it is unclear how broadcasting a match can be
linked to a State’s higher political interests.
unclear is how Al-Jazeera will react should the Court of Cassation uphold the
judgment, and whether it will consider resorting to international arbitration given
that Egypt and Qatar signed a bilateral investment treaty in 1999 that protects
investors’ intellectual property rights, among other things.
Inji Fathalla (firstname.lastname@example.org), and Nadim
Magdy (email@example.com) are
Attorneys-at-Law at Sarwat A. Shahid Law Firm (“Shahid Law”) in
Cairo, Egypt. The views expressed in
this articles are those of the authors and do not constitute legal advice.