Jody MacDonald is a sports media and technology lawyer at the UK’s leading sports law firm Couchmans LLP.
In a decision which will be of interest to fans and sports media professionals in the UK and overseas, the English High Court has found that a service publishing 8 second clips of sports broadcasts infringed copyright and could not make use of the defence of fair dealing for the purpose of reporting current events.
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The case was brought by the England & Wales Cricket Board (ECB) and pay-TV broadcaster Sky against the operators of a service called “Fanatix”. The service is accessed primarily via a mobile app (as well as a website and social media accounts) and encouraged users to capture and upload clips of live sports broadcasts which were published on a near-live basis along with clips captured and uploaded by Fanatix’s own staff.
Fanatix acknowledged that it was “pushing legal boundaries” but it had tailored the app over time specifically to try to benefit from a novel use of the long-established fair dealing for reporting current events defence. The judgment (which includes analysis of English and European law as well as international agreements and conventions to which the EU and/or its member states are parties) provides a fascinating insight into the Court’s analysis of how the law in this area impacts the use of sports clips in the modern era of mobile and digital media.
8 second clips
To establish an infringement of copyright it had to be shown that the clips being used constituted a “substantial part” of the original broadcasts and films from which they were taken. The Judge (Mr Justice Arnold) confirmed that in his view even short clips, such as clips of up to 8 seconds from 2 hour broadcasts as in this case, can be substantial if they show something of interest and value from the perspective of fans and rights holders.
Reporting current events
Fanatix argued that advances in technology and media have changed the way we access news (including sports news) and that non-linear digital services which contain video and other content that is “user generated” are as legitimate as professional reporting produced by traditional media.
The Judge acknowledged that the law in this area should be given a “living” interpretation and that the defence wasn’t restricted to traditional media. However, his view, based on how the Fanatix app worked, the way it had been advertised and other evidence presented to him, was that the primary purpose of the service was to allow users to view and share clips rather than to report current events.
Was it “fair dealing”?
Even if Fanatix had convinced the Court that it was publishing clips for the purpose of reporting current events it would also have needed to show that this use amounted to “fair dealing”. The Judge looked closely at the live broadcast and near-live clips services offered by Sky and the ECB’s other licensees (as well as the ECB’s own proposed use of clips on its digital platforms) and concluded that Fanatix was potentially commercially damaging to all of these services to some extent. Fanatix’s activities therefore conflicted with the normal exploitation of the rights and this couldn’t be justified given the nature and extent of the use.
Fanatix had also put forward secondary defences under the European E-Commerce Directive which are available to service providers that are acting as mere conduits or hosting a service used by others. In light of the Judge’s other conclusions this point was largely academic but his provisional view was (as might be expected) that these defences would not be available to Fanatix in respect of the majority of user generated clips which Fanatix had in fact stored (as well as published) and reviewed prior to being published.
Analysis
Fanatix may appeal but for now this decision will be viewed as a victory for rights holders. The Judge was keen to protect the investment made by sports broadcasters and supported their right (along with sports bodies and other official licensees) to exploit broadcasts and clips in their own services without unjustified commercial competition.
The Court did acknowledge that the way we access news (including sports news) has changed and others may well try to succeed where Fanatix failed by designing a genuine news service with specific features which make it more likely to come within the scope of a fair use defence as interpreted by the Judge in this case. However, this case shows that the intrinsic value of sports highlights clips means that any service offering comprehensive near-live clips will face a significant challenge in persuading a Court that its use does not conflict with the normal exploitation of the material by the copyright owners.
In reality, sports rights holders will continue to face challenges from unofficial publishers looking to use mobile, digital and social media to disrupt traditional sports rights models. Rather than being complacent, I would expect most sports rights holders to continue to increase the volume of clips and other content they publish on their own digital platforms and social media to ensure that they are competing with (as well as trying to stop) unofficial sources.
Note: Here is the formal case citation: (1) England & Wales Cricket Board Ltd, (2) Sky UK Ltd v (1) Tixdaq Ltd, (2) Fanatix Ltd [2016] EWHC 575 (Ch)