DOHA: The Ministry of Commerce and Industry of the State of Qatar welcomed the June 16 ruling by the World Trade Organization (WTO) that the Kingdom of Saudi Arabia had breached intellectual property rights (IPR) by refusing to take action against the beoutQ piracy channel and instead actively promoted this piracy.
The WTO’s ruling found that Saudi Arabia had breached its obligations under the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (Trips Agreement) and failed to protect IPR by refusing to take action against, and instead actively promoted sophisticated Saudi-based broadcast pirate beoutQ.
The WTO panel has called on Saudi Arabia to stop its abuse of IPR and “bring its measures into conformity” with WTO law.
This is the first time in the 73-year history of the WTO and its predecessor, the General Agreement on Tariffs and Trade, that a panel has rejected a respondent’s attempt to invoke the national security exception as a defense.
The WTO panel found that Saudi Arabia’s failure to take criminal action against beoutQ was so disconnected from any legitimate security interest that it could not meet even “a minimum requirement of plausibility in relation to the proffered essential security interests.”
Reacting to the panel report, Qatar’s Minister of Commerce and Industry Ali bin Ahmed Al Kuwari said in a statement to the Qatar News Agency: “Qatar and international rights holders have scored a resounding victory today. We expect Saudi Arabia, especially since it is hosting the upcoming G-20 (Group of 20), to respect this decisive ruling and end the theft and piracy of IPR at once. They can start by heeding the WTO’s ruling and conducting a fair, timely and transparent legal proceeding against the perpetrators in order to stop this abuse posthaste.”
The ruling came after the State of Qatar filed a formal complaint against the Kingdom of Saudi Arabia through the WTO’s dispute settlement body.
In its report published on June 16, the WTO panel concluded that beoutQ had been pirating copyrighted media content of Qatari company beIN Media Group LLP (beIN) in Saudi Arabia and beyond, including through the sale of beoutQ subscriptions and set-top decoder boxes at numerous retail outlets across Saudi Arabia.
The report said in addition to pirating beIN’s proprietary and licensed sports content, the beoutQ boxes allowed access to thousands of pirated movies, TV shows and TV channels from around the globe, and pirate broadcasts had been transmitted via Saudi-based Arabsat satellite frequencies while a Saudi company, Saudi Selevision Company LLC, had “allowed or assisted beoutQ to broadcast its pirated content on Arabsat.”
The report added that the piracy had been conducted on a “commercial scale.” The panel concluded this after considering evidence revealing the commercial purpose of beoutQ, such as the sale of advertisements and extensive marketing of the pirate service.
The report pointed out that there were deep-seated and fundamental flaws in Saudi Arabia’s commitment to providing enforcement procedures consistent with the Trips Agreement and Saudi Arabia has refused to take any effective criminal action against beoutQ despite being fully aware of the “extensive evidentiary basis for concluding that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of Saudi Arabia.”
Saudi Arabia has also restricted or otherwise frustrated the ability of beIN (and its licensors) to pursue civil actions against the infringement of their IPR, the report added. It further said that the authorities of the Saudi government have “engaged in the promotion of public gatherings with screenings of beoutQ’s unauthorized broadcasts,”including of the 2018 World Cup.”
The panel’s analysis shows how, by allowing beoutQ’s theft and piracy to spread unchecked for several years, Saudi Arabia has actively violated its obligations under the Trips Agreement to protect the IPR of Qatari citizens and of high-profile sports and entertainment rights holders from other trading partners, including the United States, the European Union and the United Kingdom. This is despite complaints by governments around the world, as well as by some of the highest-profile sports leagues and media companies around the globe.
Under this ruling, Saudi Arabia must now heed the WTO panel’s call to stop its abuse of valuable IPR, and “bring its measures into conformity with its obligations under the Trips Agreement.”
While the dispute before the WTO panel focused on IP-related violations, the panel’s findings also highlighted Saudi Arabia’s human rights violations directed at Qataris.
The panel found that Saudi Arabia “expelled Qatari residents and visitors in Saudi territories” with only two weeks’ notice — for no reason other than that they were Qatari — and imposed restrictions preventing Qataris from traveling to, or transiting through, Saudi territory.
Moreover, the panel said these discriminatory measures were mandated by the Saudi government, finding “the existence of the general anti-sympathy measures that directly or indirectly fostered a climate of anti-sympathy against Qatar and Qatari nationals.”
It is worth noting that Qatar has initiated several other legal proceedings before the WTO and other international courts and tribunals, in respect of unlawful actions taken by Saudi Arabia, the United Arab Emirates, Bahrain and Egypt, since June 2017.
Qatar will continue to pursue justice through these legal actions, while honoring its own international law obligations.
During the session, several WTO members intervened before the panel as third parties, supporting aspects of Qatar’s position.
In this context, the European Union (EU) emphasized that, consistent with the WTO obligations, “criminal procedures and penalties should not be provided only on paper, but should be effective in practice.”
Brazil and the EU pointed to the damage being done to their own rights holders.
Brazil, Canada, the EU, Japan, Russia, Singapore and Ukraine insisted that Saudi Arabia’s invocation of the national security defense must not pass without judicial scrutiny.
The panel’s report is based on extensive evidence submitted by Qatar over the course of multiple written submissions and two oral proceedings, and despite Saudi Arabia’s intensive engagement in this process.
Based on these (and many other) factual findings, the WTO has ruled clearly and explicitly that Saudi Arabia is in complete breach of international law, including its international treaty obligations. The WTO calls on Saudi Arabia to “bring its measures into conformity” with those obligations. Specifically:
Saudi Arabia is in breach of Article 42 and Article 41.1 of the WTO’s Agreement on Trade-related Aspects of Intellectual Property Rights (“TRIPS Agreement”), by preventing beIN from taking civil action against copyright infringement in Saudi Arabia. (WTO Panel Report, para 8.1(b)(i))
Saudi Arabia is in breach of Article 61 of the TRIPS Agreement by refusing to take any criminal action against beoutQ despite being operated by individuals or entities under the criminal jurisdiction of Saudi Arabia, and despite an abundance of evidence being provided to the Saudi authorities by The Premier League, FIFA, UEFA and many other rights holders. (WTO Panel Report, para 8.1(b)(ii))
‘National security’ defence attempts by Saudi Arabia
With regards to the Article 61 breach, in a landmark decision, the WTO rejected Saudi Arabia’s defence of national security. This is the first time in the 73 year history of the WTO (and its predecessor the GATT) that the WTO has rejected any country’s attempt to invoke the national security exception as a defence. Theft of TV rights has nothing to do with a country’s national security, it is commercial theft, which in this case has continued for 3 years and is continuing. (WTO Panel Report, para 8.1(c)(ii))
The WTO did permit Saudi Arabia to rely on the national security defence to justify its violations of Article 42 and 41.1. This is purely because the WTO’s national security exception grants considerable discretion for this defence (hence it has never been rejected for 73 years); Saudi Arabia only needed to demonstrate “a minimum requirement of plausibility” when showing a connection between its “security interests” and its violations of WTO law (i.e. beIN is a Qatari company – that is it). All the factual findings still stand despite this. (WTO Panel Report, para 7.293).
Critically, once the WTO established that Saudi Arabia was wholly in breach of international law, the WTO chose not to waste time ruling on any further connection between Saudi Arabia and beoutQ, despite that being clear, as it didn’t need to. As soon as it was established that the Saudi State actively promoted and supported beoutQ from the beginning, the WTO needed to go no further. There is a range of other – in many cases still-to-be-disclosed – evidence establishing how beoutQ was fully financed, directed and controlled by the Government of Saudi Arabia, which The Premier League has seen. Further, quite simply, the name “beoutQ” reflects exactly the Saudi Government’s policy.
All the WTO’s findings were made despite Saudi Arabia’s extensive representations to the WTO over 1.5 years. Saudi Arabia must now heed the WTO demand to stop its abuse of valuable IP rights. Unfortunately, Saudi Arabia has consistently demonstrated that if it chooses to follow the WTO’s demands, any measures will likely be a mockery, at best leading to the conviction of only no-name low level scapegoats, just as was the case with the Khashoggi murder trial. This is at a time when Saudi Arabia seeks to play an increasingly larger role in the world of sports and entertainment through its own investments in teams and other infrastructure (including Newcastle United), all of which is predicated on the protection of intellectual property.
3. Other Legal / Governmental Rulings re. Saudi Arabia, IP and beoutQ
The WTO ruling reaffirms a number of critically important facts that already have been determined by other courts of law, governments, technical experts and rights-holder investigations – inc. findings by The Premier League itself.
In May 2020, the Football Association (the FA) wrote to H.E. Dr. Majid Al-Qasabi (the Saudi Minister for Commerce, the Acting Minister for Media, and director of the Saudi Arabia Public Investment Fund (PIF) seeking to buy Newcastle United) demanding that another non-beoutQ Saudi-run broadcaster – KSA Sports – stop stealing the FA’s rights which it did throughout May 2020. In July 2019, UK Secretary of State for International Trade, Liam Fox, also wrote to Al-Qasabi demanding an end to beoutQ.
In April 2020, the United States Government published two scathing reports4, one of which placed Saudi Arabia on its top “Priority Watch List” for the 2nd consecutive year, due in part to rampant piracy and beoutQ, notwithstanding the operation being currently down on satellite. The US Government also slammed the “millions of beoutQ-branded IPTV boxes in homes and business throughout the region” some “repurposed with other illicit IPTV streaming applications”. beoutQ boxes provide access to every major channel in the world, including Sky, Disney, BBC, ESPN, Fox Sports, Canal and beIN SPORTS.
In January 2020, the European Commission likewise published a major report in which it singled out Saudi Arabia for “causing considerable harm to EU businesses” following the unprecedented theft of European sport programmes by Saudi-based beoutQ and Arabsat.
In September 2019, FIFA, UEFA, The Premier League, LaLiga, Bundesliga, Serie A, LFP and AFC published their own 158 page investigative report, which establishes “without question” that beoutQ’s satellite transmissions have been distributed by Saudi-headquartered Arabsat. That report also describes in detail the sophisticated IPTV streaming function of beoutQ’s operation, including how one of the most damaging IPTV pirate apps – “EVDTV” – is based in Riyadh and remains operational.
In June 2019, a French court (Tribunal de Grande Instance de Paris) held that Arabsat distributed beoutQ on its satellite network despite Arabsat’s 2-year denial and beoutQ openly stating the Arabsat frequencies on its Facebook channels. The French court also found Arabsat switched satellite frequencies during testing in order to deceive the court so that the court could not make further rulings against it.
Finally, when The Premier League and other UK sport returns (including Newcastle United playing their first game against Sheffield United on Sunday 21st June), the only way to watch matches in Saudi Arabia – population 35m – will be illegally, either on beIN SPORTS which is available only via the grey market (in another violation of international law by Saudi Arabia), or via beoutQ and other pirate IPTV boxes.
