Reproduction of eight second clips of a sporting event can infringe copyright
In the recent case of England and Wales Cricket Board and Sky UK Limited vs. Tixdaq Limited and Fanatix Limited the High Court held that reproduction and communication to the public of eight second clips of broadcasts of cricket matches via a mobile application was not protected by the defence of fair dealing for the purpose of reporting current events, and amounted to copyright infringement.
The defendants had developed various mobile applications, and in particular the Fanatix app (the "App"), that allowed their employees and contractors, and users of the App, to upload clips of broadcast footage of sporting events to the App by using screen capture technology. These clips were available to view (in near real-time) via the App, as well as the defendants' website www.fanatix.com, Facebook page and Twitter feed. Each clip lasted up to eight seconds and was accompanied by a short commentary added by users during the upload process. In later versions of the App users were asked to attribute the clip to a particular broadcaster and (where possible) a particular sports event.
England and Wales Cricket Board Ltd and Sky UK Ltd claimed that reproduction of the clips infringed their copyright. The copyrighted works fell into two categories of "signal rights", namely: (i) television broadcasts of cricket matches staged under the auspices of the ECB; and (ii) films made during the course of the production of the broadcasts. There was no dispute that copyright subsisted in the broadcast and film works, nor was there any dispute over ownership of such copyright.
The defendants sought to rely on the defence of, in the first instance, fair dealing for the purposes of reporting current events under section 30(2) of the Copyright, Designs and Patents Act 1988 ("CDPA") and, secondly in relation to users' uploads, the immunities for acting as a mere conduit and hosting provider in Regulations 17 and 19 of the Electronic Commerce (EC Directive) Regulations 2002.
Mr Justice Arnold considered whether the eight-second clips constituted a substantial part of the claimants' copyright works (infringement (within section 16 of the CDPA) must subsist "in relation to the work as a whole or any substantial part of it"), the determination of which would feed into the assessment of fair dealing .
The Judge concluded that whilst quantitatively eight seconds was a relatively short period in a broadcast of two hours or more, when considering the clips qualitatively, they constituted highlights of the matches and therefore were of interest and value and substantially exploited the claimants' investment in producing the relevant broadcast or film. On that basis the clips were found to constitute a substantial part of the relevant copyright work(s).
News reporting defence
Section 30(2) of the CDPA provides that "fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement."
The Judge noted that there was no requirement to restrict "reporting current events" to just "news reporting", nor were "current events" confined to events which were very recent. He went on to construe section 30(2) of the CDPA in accordance with Article 5(3)(c) of the Copyright Directive which allowed use "to the extent justified by the informatory purpose" (section 30(2) permitted use that was "fair dealing"). When considering fair dealing under section 30(2) in accordance with Article 5(3)(c), Arnold J questioned whether the extent of the use was justified by the informatory purpose.
Fair dealing and informatory purpose
The parties did not dispute that the cricket matches were "current events" for the purpose of section 30(2). The Judge considered whether the reproduction and communication of them to the public was for the purpose of reporting such events and found that the clips were reproduced and communicated to the public for the primary purpose of sharing the clips with other users, with the secondary purpose of facilitating debate amongst users about the sporting event. The clips were presented to viewers, accompanied by comments, as opposed to reports being presented to viewers illustrated by clips. As such, the clips were presented for consumption by viewers because of their intrinsic value and interest; they were not used to inform viewers about a current event.
Arnold J concluded that the defendants' objective was a purely commercial one rather than being genuinely informatory. The use was commercially damaging to the claimants and conflicted with the normal exploitation of the copyright works. It would have reduced the attractiveness of Sky's live broadcast as well as ECB's own proposed use of the clips and future licensing plans.
Arnold J found that, whilst there was no requirement as to the form taken by acknowledgement, even if the footage had been used for the purpose of reporting current events, in some cases the clips would have infringed in any event because of the lack of sufficient attribution. In some clips the Sky logo was not used (whether because it was not captured by the user who uploaded the clip or because it was obscured by the Fanatix logo).
Conduit and hosting
There was no dispute that the defendants' services were information society services. Arnold J found that Article 12 did not apply because the defendants' service involved storage as well as transmission of information and with regard to Article 14, the Judge held that the Article 14 defence would only be available in respect of user-posted clips that were not editorially reviewed but not in respect of clips that were editorially reviewed.
Rightholders will welcome this judgment as it affords greater protection to the investment made into broadcasting and film, where even very short clips can be deemed "substantial parts" and reproduction thereof found to infringe.
Consideration should therefore be given, particularly taking into account the recent developments in technology and media, by those seeking to reproduce broadcasts and films wherever there is doubt over the purpose of such reproduction.
This article was written by Caroline Young. For more information please contact Caroline on +44 (0)20 7203 5381 or at firstname.lastname@example.org.
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