Fair Dealing Defence Fails In Eight Second Sports Clip Case

In a 18 March 2016 decision in England and Wales Cricket Board Limited and Sky UK Limited v. Tixdaq Limited and Fanatix Limited (England & Wales High Court, [2016] EWHC 575 (Ch)), the 'fair dealing' defence to copyright infringement failed for Tixdaq, whose service commercialised numerous eight second clips of cricket matches, and was found not to be truly for the purpose of reporting current events.

George Sevier of Gowling WLG (UK) LLP discusses the case, which, in his view, makes clear that the law in relation to fair dealing is far from settled, particularly away from traditional media channels.

England and Wales Cricket Board Limed ('ECB') and Sky UK Limited ('Sky') own copyrights in television broadcasts and films of most cricket matches played by the England men's and women's cricket teams in England and Wales. The defendants operated a website and mobile app where the defendants' employees, contractors and users of the app uploaded numerous eight second clips of broadcasts of cricket matches, which could be viewed by other users. Clips could also be viewed on the defendants' Facebook page and Twitter feed.

The claimants succeeded in their claim for copyright infringement. The defendants pleaded the defence of fair dealing for the purpose of reporting current events provided in section 30(2) of the Copyright Designs and Patents Act 1988. They also sought to rely on the mere conduit and hosting defences provided in Article 12 and 14 of Directive 2000/31/EC (the E-Commerce Directive). Having reviewed the European jurisprudence that underlies the defences, Mr Justice Arnold rejected them both.

Background

ECB and Sky own and have the right to exploit the copyright in films and broadcasts of certain cricket matches. The ECB derives substantial income from the copyright by licensing different rights to several broadcasters - Sky alone pays hundreds of millions of pounds over the course of its agreement with the ECB. Other broadcasters are permitted to use limited clips by virtue of the Sports News Access Code of Practice ('SNAC'). SNAC is an agreement between the UK's principal broadcasters setting out the parameters for the use of another broadcaster's sports footage in news programmes. As part of the agreement, the broadcasters acknowledge that such use will constitute fair dealing for the purpose of reporting current events.

The defendants sought to disrupt the market in sports media rights by uploading, and getting the public to upload, clips of up to eight seconds, taken from official footage of cricket matches. In investor presentations, they claimed to have achieved 250 million replays in 100 days since launch, and to have 20,000 daily active users of the Fanatix app. Whilst Tixdaq's CEO tried to suggest that the app was used far less, the Judge held them to the figures in the investor presentations. In addition, there were up to 100,000 visitors to the Fanatix website each day and up...