It’s Just Not Cricket!

Reproducing videos and broadcasts on social media and websites is a practice which has become increasingly common in recent years.  Indeed there are websites (some of them very successful and no doubt highly lucrative) whose core existence is centred around the sharing of amusing or entertaining video clips with the general public with the aim of making such videos "go viral" or even "break the internet".

The copyright law in this area has been largely untested in the UK courts; however a recent High Court decision has thrown some light over the potential implications from reproducing and communicating such video clips to the public.

The first claimant in the case was the England and Wales Cricket Board Ltd ("ECB") and the second claimant was Sky UK Ltd.  Together they owned the copyright in television broadcasts of cricket matches staged under the auspices of the ECB, as well as films made during the course of the production of the broadcasts (for example, action replays).  The defendants operated the website located at www.fanatix.com, as well as various mobile applications including the Fanatix app.  

The function of the Fanatix app was to share video clips lasting up to eight seconds long of broadcasts of cricket matches.  Such video clips would be uploaded onto the app by the defendants or its users and could be viewed, shared and debated with other users.  The claimants alleged that the video clips infringed the copyright in claimants' underlying copyright works.  The defendants relied on the defence of fair dealing for the purposes of reporting current events. 

Copyright is infringed by doing an act restricted by copyright, such as reproducing or communicating to the public a "substantial part" of a copyright work.  The first question the court had to address was whether an eight-second clip amounted to a "substantial part" of the copyright work.  Given the length of a session of play in a cricket match, it was fairly clear that quantitatively the video clips did not amount to a substantial part of the cricket match.  However, the court held that, qualitatively, most of the video clips uploaded constituted highlights of the match (such as wickets, boundaries and catches) and thus showed something of interest and of value.  Each clip did, therefore, exploit the claimants' investment in producing the broadcast/film and did amount to a "substantial part" of the copyright work. 

In deciding whether the defendants had a defence of fair dealing for the purposes of reporting current events, the court held that the most important factor was whether the alleged fair dealing was in fact commercial competition with the claimants' exploitation of the copyright works.  The video clips were not used in order to inform the public about a current event but for commercial reasons due to their entertainment value.  Even if the use had been for the purpose of reporting current events, the video clips were still commercially damaging to the claimants and so the use would still not have been fair dealing. 

Sky has recently paid £4.2bn for the television rights to the Premier League for the next three years and so will no doubt be buoyed by the guidance provided by the court in favour of rights holders in this complex area of the law.  It will be interesting to see if the High Court decision results in an increase in the number of copyright infringement claims and whether the courts follow the judge's comments on substantiality and fair dealing in future cases.

Posted on: 13/05/2016

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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