Copyright: England and Wales Cricket Board Limited v (1) Tixdaq Limited [2016] EWHC 575 (Ch)

Did the fair dealing defence cover the online publication of eight second clips of sports matches?

The facts

The case concerned the Claimants’ copyright in TV broadcasts of cricket matches. The rights to publish clips were licensed to various broadcasters and websites. The Defendants published eight second clips of the matches on their website and certain apps, which the Claimants alleged amounted to copyright infringement. The Defendants relied primarily on the defence of fair dealing for the purposes of news reporting.

The decision

In summary, the fair dealing defence failed in respect of the online publication of eight second clips of cricket matches. The clips had value in themselves and were published online for this reason, rather than purely for information purposes. The Judge concluded: “The conflict with the Claimants’ exploitation of their copyrights was not warranted by the nature and extent of the use, and thus the use was not proportionate”.

The Judge considered that the 8 second clips, while not substantial in quantitative terms in relation to a several hours long broadcast, were such that they contained “interesting” moments from the games – such as wickets taken, or runs scored – and were therefore suffcient to amount to a “substantial part” of the copyright work. The publication of the clips was therefore capable of amounting to copyright infringement.

As to fair dealing for the purpose of news reporting, the Judge held that a contemporaneous sporting event can be a “current event” for the sake of the defence. The Judge also noted that the fair dealing defence must be given a “living” interpretation, so as to take into account developments in technology and media. He said that “these provisions should now be interpreted more broadly than they may have been in the past”.

The 3-part UK test for fair dealing was considered, namely: (i) whether the alleged fair dealing commercially competes with the proprietor’s own exploitation of the copyright work; (ii) whether the work has already been published or exposed to the public; and (iii) the amount and importance of the work that has been taken. It was noted that this should be considered in conjunction with EU law and Article 5(3)(c) of the InfoSoc Directive, ie whether the extent of the use of copyright material is justified by the informatory purpose.

It was pivotal in this case that the users uploaded the clips predominantly for others to view those clips, and not to illustrate points made in a wider report of an event, and therefore the fair dealing defence did not succeed. The clips were being used because they had intrinsic value in themselves, and the Defendants intended them to have a commercial value, rather than publishing them purely for an informatory purpose.

Some clips would also have failed the fair dealing test because of the lack of a suffcient acknowledgement of the copyright owner. No defence of fair dealing for the purposes of quotation was put forward.

Why is this important?

This decision concerns the scope of the fair dealing defence in the context of online clips and news reporting. These decisions are relatively rare and so it is helpful when we receive further guidance from the Court.

Any practical tips?

The nature and extent of any use of copyright material must be carefully considered if a substantial part is being reproduced and you are seeking to rely upon any of the fair dealing defences.