This article was first published on Lexis®PSL IP & IT on 3 September 2014
The press has recently reported that the Football Association Premier League (FAPL) has objected to members of the public sharing video clips of goals scored in FAPL matches via social media. The majority of such clips are recorded and shared using a social networking service called Vine, which is owned by Twitter. Vine users can edit their videos into 6 second loops and then upload and share them. During the recent World Cup, the popularity of Vines was immense, with thousands of videos being shared by football fans. The FAPL claims that any such copying of its recorded matches constitutes copyright infringement, even if the clips are only a few seconds long.
The FAPL has exclusive licence deals in place with companies such as The Times, The Sun, Sky and BT Sport to allow them to broadcast FAPL matches. The broadcasters pay vast sums of money in return for their exclusive broadcast rights (which are usually split across different media and territories). In 2012, for instance, BT Sport and Sky together paid £3bn for the right to broadcast in the UK three seasons-worth of FAPL matches.
The FAPL therefore has a vested interest in keeping its licensees happy and helping protect their exclusive rights. To that end, it is very assertive in trying to stop non-licensees from commercially exploiting Premier League football matches.
In 2012, it tried to stop a Portsmouth pub landlady, Karen Murphy, from showing live Premier League football matches in her pub via a Greek satellite decoder instead of a UK Sky box (thereby saving significant sums of money). The FAPL v Murphy "decoder case" was widely publicised not only because of the David versus Goliath element and the fact that so many of us watch football matches at our local pubs but also because of the potential impact of the judgment upon the sports and media industries. The Court of Justice of the European Union ("CJEU") held that the FAPL matches themselves did not constitute copyright works and therefore were not protectable per se. This finding threatened to undermine the foundation of sports events licensing; what value would such licences have if their very subject matter - the matches themselves – cannot be protected? However, fortunately for the FAPL (and licensors more generally), the Court held that certain elements of the match recordings - such as the Premier League anthem, pre-recorded films showing highlights of previous Premier League matches, various graphics and logos - did qualify for copyright protection. Any unauthorised copying of matches that includes those elements therefore may well constitute copyright infringement.
As a result of this ruling, the FAPL increased the prominence of such copyright protected elements in its televised football matches, in order to make it difficult for anyone to copy the broadcast material without infringing the FAPL's copyright.
Can goal footage be protected by copyright?
As mentioned above, FAPL v Murphy confirmed that, while the televised football matches themselves do not attract copyright protection, certain creative elements of them (eg the logos and anthems) do. Therefore, if any of the goal clips shared on Vine contain the logos and other protected elements, then, subject to the possible defences mentioned below, they are likely to infringe the FAPL's copyright. Innovative video makers may try to remove such logos etc before posting their video clip online in an attempt to avoid copyright infringement. However, in order to do so, it is likely that a copy of the original match clip will have been made (to subsequently edit it). By making such a copy, the video maker is likely to have infringed copyright under s17 CDPA (see below).
Furthermore, goal clips from televised football matches may themselves qualify as copyright works (regardless of whether the logos etc and other copyright works referred to in the decoder case are reproduced in the clips). This is because the camera angles and sequence used in filming goals, and in particular in reviewing the goal (close ups, different view points etc) are likely to produce a work that is sufficiently creative and original to constitute a copyright work.
Finally, the broadcasters of FAPL matches enjoy copyright protection in the transmitted programmes as broadcast works. Football fans videoing, editing, uploading and then distributing footage of goals from transmitted broadcasts may therefore be infringing the broadcaster's copyright.
The specific acts of copyright infringement likely to be committed by the football fans in editing and sharing the football videos are: unauthorised copying (ie reproducing all or a substantial part of the original copyright work) and communicating the work to the public (s.17 and 20 respectively of the Copyright Designs and Patents Act 1988 ("CDPA")).
What other claims may the FAPL have?
One important consideration is whether the FAPL can prevent football fans from recording footage while watching an actual live football match at a stadium. Such footage wouldn't constitute a work attracting copyright protection (in line with the decoder case) nor would it have the protected copyright elements that the official (FAPL licensed) broadcasts do. However, the FAPL could seek to prevent such action by relying on the conditions of entry into its stadia. All football tickets are sold subject to terms and conditions which are likely to state that any filming of matches - or parts of matches eg goals - within the stadia is strictly prohibited. How viable it is to police such illicit filming, when almost every fan in the stadium will have with them a Smartphone or other device containing a camera, remains to be seen.
What defences/exceptions might apply?
The users of Vine may be able to avail themselves of the fair dealing defence of current news reporting. Section 30(2) CDPA states that a person will not be liable for copyright infringement if they can show that their use of the copyright work constitutes fair dealing for the purpose of reporting current events. The courts construe this "purpose" liberally and it is therefore quite possible that a football fan who shares a video clip of a goal being scored in a Premier League match played that day, that week or even perhaps that month is doing so in order to report to others a current event.
The law requires a sufficient acknowledgment to be given (identifying the author and the work) by the person reporting on the current event EXCEPT in relation to broadcast works and except where it would be impossible for reasons of practicality.
While the decoder case is informative on the issues here, the facts were quite distinct, and so it is of limited application. Clients such as sports bodies and broadcasters which have a vested interest in preventing the sharing of these "goal clips" need to bolster their position by ensuring that, in addition to the broadcast copyright, they have maximum copyright protection in all of those elements cited by the CJEU (eg maximising the size and positioning of the logos visible on screen; adding more creative graphics and sequences of camera angles etc to create more copyright works). This is particularly important for footage of goals as it is this footage that is most likely to be copied.
Sports bodies should also look to tighten the terms and conditions of ticket sales to ensure that anyone videoing a match – or even just a goal being scored - from within a stadium is committing an offence and can face sanctions (being removed from the stadium, refused entry to the next match, pay a fine or lose a season ticket). This could be combined with a more collaborative approach such as launching a campaign to educate fans about the rights of the FAPL and broadcasters and to give guidance as to how fans can avoid infringing those rights.
Clients such as social networking services need to be aware of the issues here and ensure that their terms and conditions prohibit users from infringing any third party IP rights. Service provider should avoid monitoring videos for IP infringement but, once notified by a rights owner (such as the FAPL) of an actual infringement, it must act quickly to remove the offending material in order to avoid being liable itself (as an intermediary with knowledge).
Finally, clients who are football fans or other individuals posting unauthorised videos online of their favourite goal being scored should be aware that they may be infringing copyright and that the defence of fair dealing for the purpose of reporting current events has yet to be tested in the courts for this particular use.