Fair Dealing and Unauthorised Sports Broadcasts
Written by Thomas Mould on 07 April 2016« Return to Reading Room
The England and Wales Cricket Board (ECB) and Sky successfully brought a claim for copyright infringement in the High Court against the company behind a mobile app that allows the online sharing of short video clips from sports broadcasts.
The Fanatix app allows users to capture up to eight seconds of footage, similar to the app ‘Vine’, add their own commentary and then share it online.
The shared content features 'Fanatix' branding and is displayed alongside adverts. The app contains more restrictions on use and require users to attribute the source of the pictures.
The ECB and Sky claimed that the operators of the Fanatix app were responsible for copyright infringement, something which the operators refuted.
Communicating copyrighted content to the public is an act generally restricted by copyright. The Copyright, Design and Patents Act 1988, states that copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public without rights holders' permission via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".
Minor infringements of copyright are allowed without punishment under UK copyright law. Copyright can only be infringed if the unauthorised use involves the whole or a 'substantial part' of the copyright work.
Mr Justice Arnold said that, in the context of broadcasts and first fixations of films, both the quality and quantity of the copied content must be assessed when determining whether it constitutes a 'substantial part' of the copyrighted material.
In the context of sports broadcasts, the judge said that some moments from matches, such as wickets in cricket or goals in football, will be more interesting to viewers and said unauthorised distribution of those clips might unfairly exploit the investment broadcasters make into the filming and editing of matches.
"Quantitatively, eight seconds is not a large proportion of a broadcast or film lasting two hours or more," the judge said. "Qualitatively, however, it is clear that most of the clips uploaded constituted highlights of the matches: wickets taken, appeals refused, centuries scored and the like. Thus most of clips showed something of interest, and hence value. The majority of the clips also involved action replays... Thus each clip substantially exploited [the ECB and Sky's] investment in producing the relevant broadcast and/or film. Accordingly, in my judgment, each such clip constituted a substantial part of the relevant copyright work(s)."
The judge considered whether use of the copyrighted content by the Fanatix app operators was protected by the 'fair dealing' defence to infringement.
UK copyright rules contain an exception which allows copyright material to be used without rights holders' permission for the purpose of ‘reporting current events’. This right is qualified, however, by an overarching principle that the use of the material in news reports is 'fair dealing'. In practice this means those using the material are generally restricted to using an amount that is reasonable and appropriate, which will vary from case to case.
Is using 8 seconds of sports footage a reasonable and appropriate amount to be covered by this exemption?
The operators of the Fanatix app argued that their use of the copyrighted material was protected under the 'fair dealing' defence. Mr Justice Arnold assessed different versions of the app, with latter versions including more viewing restrictions and an obligation to acknowledge the source of footage.
Mr Justice Arnold said that the company was pursuing a "purely commercial" objective and that its service was not "genuinely informatory" in the way required for the copyright exception of reporting current events to apply.
Even if the reproductions could be said to be for the purposes of reporting current events the Fanatix app operators' use of copyrighted content could not be considered fair dealing, the judge said. He ruled that the use was "commercially damaging" to the ECB and Sky, was in "conflict with normal exploitation of the copyright works" and that the amount and importance of the works used in all versions of the app was not justified for an informatory purpose.
This judgment offers some guidance on when the courts will consider use of content to be for informatory purposes as opposed to for supporting or sustaining commercial business. This distinction is important because where the latter applies the use of copyrighted material.
The Judge found that the objective of the Fanatix app was a purely commercial service rather than being genuinely informatory and this judgment will assist app makers and potential app makers in avoiding copyright infringement. This is also a warning to similar apps that allow users to post copyrighted content without the permission of the copyright owner and that they are unlikely to find solace in the fair dealing exemption.
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