An eight-second clip can be a substantial part of a broadcast/film

The High Court (Mr Justice Arnold) has held that the use of an App offering the ability to upload and view clips featuring highlights of cricket matches infringed copyright in the TV broadcast and films contained within that broadcast. The decision is notable for the finding that an eight-second clip can amount to a substantial part of the protected broadcast and the Court’s application of the "fair dealing" defence of reporting current events under the Copyright Designs and Patents Act 1988 (“CDPA”).

Background

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).

Tixdaq and Fanatix developed an App which allowed users to upload screen captured clips of broadcast footage and to add commentary to the clips they uploaded. The content could then be shared with other users.

The Claimants alleged that users of the App committed infringing acts when using the App, and that the Defendants were jointly liable with the users for such acts. The Defendants did not dispute the issue of joint liability, subject to the impact of mere conduit/hosting defences discussed below. Because some of the clips were made and uploaded by the Defendants' employees and contractors, the Defendants were also said to be primarily liable for infringement. The Defendants relied on the fair dealing defence of reporting current events.

Copyright is infringed 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). However, fair dealing with a work for the purpose of reporting current events does not infringe, provided it is accompanied by a sufficient acknowledgement (s30(2) CDPA).

Judgment

Substantial Part

It was noted that broadcast and film rights are "signal rights", rather than authorial works, and therefore have no requirement for originality. This gave rise to the question of what test for substantiality should apply in circumstances where there is no "intellectual creation".^[1] This question went to both infringement per se and also the applicability of the fair dealing defence.

The parties' arguments concerned whether or not it was correct to consider the value or interest of the part of the broadcast or film in question when determining whether or not it was a substantial part (i.e. whether, by analogy with intellectual creations, a qualitative assessment should be applied).

Arnold J 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.

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. The Judge noted the consequence of this finding is that certain other clips do not amount to a substantial part (for example if they do not show a highlight of the match).

Use for the purpose of reporting current events

Arnold J held that a sporting event such a as cricket match is a “current event” within the meaning of s30(2) CDPA therefore, as the majority were uploaded "near-live" in relation to matches, the clips qualified as being in relation to a current event. This was not the case in respect of interviews or analysis of matches.

The next (and key) question was whether the infringing acts were "for the purpose of" reporting the matches. Reading s30(2) in light of the InfoSoc Directive^[2], Arnold J accepted that “reporting” should be construed broadly and could therefore encapsulate “citizen journalism” in addition to traditional news reporting (in passing Arnold J noted that cases decided before the InfoSoc Directive was implemented should be treated with caution).

However, notwithstanding the potentially broad definition of “reporting”, the Judge was also influenced by the way the Defendants had advertised their App (together with the other evidence) and concluded that its primary purpose was sharing clips. Even though users added comments to the clips, this was not sufficient to qualify as use for the purpose of reporting current events. The clips were presented for consumption because of their value, rather than to inform the audience about current events.

Fair dealing

The Judge went on to consider whether, if the clips were for the purpose of reporting current events (contrary to his finding), the use of the clips was fair dealing. He also decided this point in favour of the Claimants. The evidence demonstrated that the use was commercially damaging to the Claimants and conflicted with the normal exploitation of the works, including live coverage and clip rights (through the licensing deals the ECB had negotiated with other outlets, its own proposed use and future licensing plans). Further, the extent of the use was held not to be justified by the informatory purpose, even for later versions of the App that restricted the amount a user could view.

Mere conduit / hosting

The App service did not merely involve transmission of information but also storage, meaning the mere conduit defence was inapplicable. As regards hosting, many of the clips uploaded to the App were subject to editorial review by the Defendants, or even uploaded by the Defendants' employees, and so not subject to the hosting defence. Although the point was not fully argued, the Judge took the provisional view that the hosting defence would be available in respect of user-posted clips which were not editorially reviewed.

Comment

This judgment will be welcomed by rights holders, especially in the sports sector where the underlying subject matter of the broadcast itself (i.e. the sporting event) is less readily protected than , for example, TV drama series or feature films, with an underlying "authorial" dramatic work). The investment made by broadcasters in the right to broadcast live sport and the ability to show slow motion action replays from all angles is very great, and therefore the finding that even very short highlight clips can constitute a substantial part of the broadcast will provide comfort that this investment can be protected.

This case provides useful guidance on how the categories of use exempted from liability can be construed purposively (and hence broadly) in light of technological developments and the InfoSoc Directive, even if on the facts the purpose here was held to be sharing footage purely for consumption as opposed to imparting information. This judgment suggests that where commercial value is extracted from the copyright content itself (rather than the use of such content to report on events) it will be difficult to satisfy the requirement for fair dealing for the purpose of reporting current events.

The Defendants did not rely on the (comparatively) new defence of using a quotation from a work (s30(1ZA) CDPA). This defence as drafted in the CDPA is unrestricted by reference to "purpose", so the Judge's finding that the purpose of the Defendants' service was to share clips and facilitate debate may not, of itself, have precluded the application of the defence. However, purpose arguably remains relevant given the corresponding provision in the InfoSoc Directive (Art 5(3)(d)) refers to "quotations for purposes such as criticism or review". In any event, the CDPA defence is also subject to the use of the quotation being "fair dealing" with the work. Given the Judge's finding that the clips conflicted with a normal commercial exploitation of the copyright works and the extent of the use was not justified, it is unlikely the quotation defence would have helped the Defendants here either.