Is the ECB v Fanatix decision a fair deal for copyright owners?

The creation of short clips of broadcasts of sporting events - for example, clips of goals, tries or wickets - is increasingly widespread. Modern technology (smartphones and the ability to rewind live TV) means almost anyone can film a part of a broadcast. And there are now a host of Apps (such as Vine) that allow such clips to be shared across the Internet in a matter of seconds. Concurrently, users are increasingly turning to social media outlets to access sporting content in addition to (or instead of) traditional broadcast channels.

This presents rights holders with a new challenge of how to effectively prevent the unauthorised use of their content, in order to preserve the market for themselves and their official broadcasters and commercial partners. Copyright laws are central to this issue, and in particular the questions of:

1. what constitutes a “substantial part” of a sporting broadcast (which is necessary to prove a breach); and
2. what constitutes “fair dealing” of sports clips (which can be used as a defence).

This article analyses these issues in light of the recent decision in ECB & Sky vs Tixdaq & Fanatix (“Fanatix”),¹ which shed further light on the matter. A case review of Fanatix is available here.²

Sports clips and copyright

Given the value of sporting content³ it is obviously of great importance for rights holders to be able to preserve their exclusivity as much as possible.

The principal weapon available to rights holders seeking to restrict the unauthorised dissemination of content is copyright. Contractual terms and conditions can be attached to tickets for live events, however the sharing of clips of sufficiently high quality to be of commercial value is an issue that most commonly arises through the recording of televised content rather than live action.

In order to establish copyright infringement, there must be an infringing act in relation to the whole or a “substantial part” of the work in question. This immediately raises the question of what amounts to a “substantial part”? In other words, at what point does a clip become an infringing clip? Another question is to what extent content sharers might be able to rely on defences to copyright infringement, such as fair dealing for the purposes of news reporting or quotation.

These questions were recently considered by the High Court of England and Wales in the Fanatix case. To briefly recap the facts, Tixdaq developed an App called “Fanatix”. Users of the App, as well as Tixdaq's own employees and contractors, uploaded clips of broadcasts of cricket matches to the App where they could then be viewed by users. The ECB and Sky were the copyright owners in television broadcasts of cricket matches organised by the ECB, and films made during the course of such broadcasts (for example action replays). The main arguments advanced by the Defendants were:

1. that the clips were not a substantial part of the broadcasts; and
2. the use amounted to fair dealing for the purpose of reporting current events (for which there is a statutory defence under s30(2) Copyright Designs and Patents Act 1988 (“CDPA”).

What constitutes a “Substantial Part”

Copyright is infringed in the UK by doing an act restricted by copyright (such as reproduction or communication to the public) in relation to the whole, or any “substantial part”, of a work (s16 CDPA). Following the decision of the CJEU in Infopaq I⁴ an original work is infringed where there is an unauthorised reproduction of the author’s “intellectual creation”.

However, broadcast and film rights are "signal rights", rather than authorial works, and therefore have no requirement for originality or intellectual creation. It is worth noting in this context that under the CDPA a "film" refers to the "fixation" of an audio-visual signal, rather than the underlying content of that signal. If the ECB and Sky had wanted to seek protection on the basis that Sky's broadcast personnel had created an intellectual creation, under the CDPA they would have had to have argued that through the use of camera angles, close-ups and the like Sky had created a "dramatic work".⁵ As it was, the claim was limited to "films" and "broadcasts", and as such this gave rise to the question of what test for substantiality should apply in circumstances where there is no "intellectual creation".

In Fanatix, the Judge held that an approach parallel to the "intellectual creation" test should be applied and therefore that parts of films and broadcasts were protected if they contained elements reflecting the rationale for their protection i.e. the investment made by the broadcaster or producer. This required both a quantitative and qualitative assessment of the part of the work reproduced which could include consideration of its value and interest (see paragraphs 60-66).

The clips used by the Defendants were (at most) eight seconds long, taken from broadcasts or films which were around two hours long. Quantitatively this was not a large proportion. However, from a qualitative perspective, the clips were typically of highlights of the matches such as wickets and appeals and therefore were of interest and value. The Judge held that this meant each such clip substantially exploited the Claimants’ investment in producing the relevant broadcast or film and therefore constituted a substantial part (see paragraph 99). The Judge noted (at paragraph 102) that the consequence of this finding was that certain other clips did not amount to a substantial part (for example if they do not show a highlight of the match).