The High Court has decided that uploading 8-second clips of cricket matches played by the England & Wales men's and women's cricket teams to the website www.fanatix.com, various mobile apps and on social media amounts to copyright infringement. Further, the Defendants were unable to defend their infringing use on the basis that it was fair dealing for the purposes of reporting current events: whilst the cricket matches were current events, uploading the clips did not constitute 'reporting’, even where users were required to add commentary when uploading.
Key aspects of the decision
When assessing whether there has been infringement of a substantial part of copyright in ‘entrepreneurial’ works such as broadcasts and films, the Court should consider the degree of reproduction both quantitatively and qualitatively, by reference to the extent to which the reproduction exploits the broadcaster or producer’s investment. In this case, the clips – which related to highlights in a match, such as wickets, appeals, centuries etc. - were qualitatively significant and therefore amounted to a substantial part.
Whilst exceptions to copyright infringement are interpreted strictly, the fair dealing defence of reporting current events must also be given a ‘living’ interpretation which takes into account technological and media developments. Accordingly, the concept of ‘reporting' should be construed more broadly than in previous cases: it is not restricted to traditional media, and can extend to ‘citizen journalism’, even where that involves little commentary.
However, when assessing whether the use was for the purpose of ‘reporting’ current events, the Defendants’ objective was purely commercial rather than genuinely informatory (as compared to a news service). The uploaded clips did not inform the audience about the event, but were presented for their intrinsic value and interest. This suggests that where the purpose is a ‘purely commercial’ one, the defence will not be satisfied.
The claim was brought by the ECB and Sky against the operator of the fanatix website, and other websites and applications (the App).
Employees of the Defendant and members of the public can copy clips lasting up to 8 seconds of broadcast footage from sports events and upload them to the App for viewing by users, including within seconds of the relevant incident being broadcast. In later versions of the App, users are required to add at least 70 characters of commentary to the uploaded content, and to attribute the clip to a particular broadcaster and event. Other recent restrictions include limiting the amount of uploads by a user and removing clips after a 24 hour period, as well as an algorithm which restricts the rate at which users can view clips from each event and imposes an overall daily limit. The algorithm is designed to ensure that the extent of use mirrors more closely the use that is permitted to broadcasters under the Sports News Access Code of Practice (SNAC).
Some of the clips are then also uploaded to the fanatix website and on social media accounts.
Was there an infringement of a substantial part of the copyright works?
The copyright works are:
The Court said it was necessary to consider the rationale for granting protection to ‘entrepreneurial rights’ such as broadcasts and films, i.e., the investment made by the broadcaster or producer. This meant that the test for substantiality was the degree of both quantitative and qualitative reproduction, having regard to the extent to which the reproduction exploits the broadcaster or producer’s investment.
Quantitatively, 8 second clips were not a large proportion of a broadcast or film of a cricket match. However, as most of the uploaded clips were of match highlights such as wickets, appeals, centuries etc, there was a substantial exploitation of the Claimants' investment in producing the relevant broadcasts/films, which amounted to reproduction of substantial parts of the copyright works.
Did the fair dealing defence of reporting current events apply?
Even where infringement is made out, a defendant may be able to rely on the defence of fair dealing, including where it has used a work for the purpose of reporting current events (such as a contemporaneous sporting event), provided its use is accompanied by a sufficient acknowledgement. The defence would not apply, for example, to the uploaded clips of pundits giving analysis.
The Court accepted that the ‘reporting’ current events exception needed to be given a ‘living’ interpretation which meant it was not limited to traditional reporting and media, but could extend to ‘citizen journalism’, even if it had little in the way of commentary. In this case, however, the Court decided that the use made of the copyright works by uploading the clips was not use for the purpose of reporting current events, i.e., to inform the audience about a current event. Instead, the clips were "presented for consumption because of their intrinsic interest and value". Accordingly, the Defendants’ objective was purely commercial and not genuinely informatory. This was also the case for later versions of the App which required users to add at least 70 characters of comment.
Was the use fair dealing?
Even if the Court had decided that the use was for the purpose of reporting current events, the Defendants’ use did not constitute fair dealing. Uploading the clips was commercially damaging to the Claimants and conflicted with their normal exploitation of the copyright works (both in terms of live coverage and exploitation of clips through licensing rights). Further, the extent of the use was excessive and not therefore justified by the informatory purpose (even in the later versions of the App).
This decision is a significant one for rights holders in the sports sector, given the significant investments made in broadcasts and their exploitation, and given that the Courts have said that there is no copyright in the sport itself. The Judge characterised the Defendants in this case as ‘knowingly pushing legal boundaries’ in relation to the defence of fair dealing for the purpose of reporting current events. However, he also accepted that they were seeking to act lawfully, and had made various modifications which sought to address the Claimants' concerns, albeit these were not sufficient.