Mr Justice Arnold in the High Court recently held that a smartphone app which enables users to upload clips taken from television broadcasts of sports matches (in this case, cricket) to the internet can infringe copyright in the broadcast and the films contained within that broadcast. Importantly, an 8 second clip was enough to constitute a substantial part of a broadcast of the entire match but did not constitute fair dealing for the purposes of reporting current events.
The England and Wales Cricket Board Limited (the "ECB") and Sky UK Limited (the "Claimants") were the owners of copyright in television broadcasts of cricket matches organised by the ECB, and "films" made as part of the broadcasts, such as slow motion action replays.
Tixdaq Limited and Fanatix Limited (the "Defendants") created a smartphone app which allowed users to capture clips of live television broadcasts and upload the clips to the internet together with a short, text commentary.
It was argued that users of the app infringed copyright by copying a substantial part of a broadcast and/or film and also by communicating that substantial part to the public. It was further argued that the Defendants were jointly liable with the users for such acts as well as being primarily liable because some of the clips were made and uploaded by the Defendants' employees and contractors.
Copyright is infringed by doing an act reserved for the copyright owner, in relation to the whole, or any "substantial part", of a copyright work. Broadcasts and films are known as "signal" rights for the purposes of copyright and differ from "content" rights such as literary or artistic works because there is no requirement that they are original. The court was therefore required to consider what the appropriate test for substantiality should be. If a broadcast and a film don't need to be original in order to be protected by copyright, is it correct to apply a similar test for substantiality?
The court cited Infopaq I in saying that the notion of "substantial" in the case of content works, refers to a part containing elements that reflect the rationale for granting protection of the work or, in other words, the "intellectual creation of the author". It therefore reasoned that a similar approach should be adopted for broadcasts and films, so that a short clip of a longer broadcast could represent a substantial part if it contained elements which reflected the rationale for protecting them. What was the valuable part of the broadcast and the films within it?
Quantitatively, an 8 second clip is clearly not a large proportion of a 2 hour broadcast. However, many of the clips in question showed key moments from the match, such as the falling of wickets, catches or appeals of decisions. They were therefore qualitatively significant clips and exploited the Claimants’ investment in producing the broadcast and films. If the clips had been 8 seconds of footage which did not include key moments from the match, it is unlikely that they would constitute a substantial part because they probably wouldn't have been the valuable footage that people wanted to see.
Reporting current events
Using a copyright work for the purpose of reporting current events does not infringe copyright, provided the use is accompanied by a sufficient acknowledgement. This meant that the court had to decide whether a cricket match can constitute a “current event”.
Importantly, the majority of clips were uploaded very soon after the broadcast. The court therefore had little difficulty in coming to the conclusion that they constituted a current event. Could the clips be considered as being for the purpose of "reporting" these current events though?
The court accepted that “reporting” should be construed broadly and include content created by the public, as well as content produced by established news agencies. However, it decided that the primary purpose of the app was not to report current events, but to share clips and that the commentary feature was secondary functionality. There was nothing in the app to restrict its use to contemporaneous sporting events and a user could, if they wished, upload a clip from a broadcast or film of a past sporting event. Also, some of the clips were not footage from the match itself, but clips of pundits giving analysis or interviews. In practice, the evidence showed that the clips were almost always accompanied by comments, however it was possible to enter simply a single character of text. Tellingly, the Defendants had delivered a series of presentations to investors in which they had described the app as “…a social platform that enables users to discover, create and share sports content”. The court decided that the clips were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value. In any event, some uses of the clips would still infringe because of the lack of sufficient acknowledgment.
Finally, the judge found that the use was not fair dealing because it was commercially damaging and the extent of use was not justified by the informatory purpose.
E-Commerce Directive safe harbours
The Defendants failed in their argument that the app was a mere conduit, because it involved more than just a transmission as the clips were also stored within the app for 24 hours (and sometimes longer). The Defendants also exercised editorial discretion over the clips, meaning that they couldn't claim to be a passive host.
This judgment is undoubtedly good news for broadcasters, given the huge sums of money involved in securing broadcast rights to sporting events. It suggests that where the user goes beyond simply reporting a current event and capitalises on the commercial value of a broadcast or film, it will be difficult to satisfy the requirement for fair dealing.
Would the outcome of this case have been different if the app allowed users to record snippets of key moments from the full broadcast and then compile these shorter clips into their own 8 second montage? In that scenario, would it still be correct to say that the commercial value has been extracted or would the user simply be reporting the event in a bite-sized delivery format? The user would be exercising its own skill and judgment and so could conceivably create its own copyright work which, aside from infringement, would create another interesting legal situation.
Much of this case turned on its particular facts so it will be interesting to see how the courts interpret similar situations in the future.
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