It's Not Just Cricket!: Where Are The Boundaries Of The Fair Dealing Defence?

Cricket and copyright rarely coincide, buy they did in the High Court earlier this Spring, when Mr Justice Arnold handed down a typically mammoth and meticulous judgement in England and Wales Cricket Board v Tixdaq. Even if one's interest in cricket is sub-zero (like the author's), the decision is of major interest for the new light that it casts on the fair dealing defence, and the way that it updates the interpretation of that defence into 21st century digital Britain.

The background

Tixdaq Limited and its confederate Fanatix Limited, both digital sports media companies, dreamed up a business model whose websites, apps and social media feeds exploited screen-capture and video-sharing technologies in order to enable cricket fans to upload and share short clips of broadcasts of cricket matches, and add their own commentaries thereto, thus turning them into "instant cricket pundits". The copyright in the relevant broadcasts was owned by the claimants, namely the England and Wales Cricket Board and its broadcaster, Sky UK, whose consent the defendants had failed to obtain (a rather important omission); but on the basis of legal advice that they had sought, the defendants implemented the business model in the (mistaken) belief that they benefitted from defences to liability.

The decision

The claimants duly sued in the English High Court for copyright infringement, and it fell to Arnold J to decide whether they had a case for infringement and, if so, whether either of the defences advanced by the defendants actually stood up in court. We shall deal in turn below with each of these issues:-

Did the claimants have a case?

The claimants did not have to bother with proving "originality" for copyright purposes, since the Copyright, Designs and Patents Act 1988 (the Act) does not require "signal rights" (which included the works in suit, namely broadcasts and films) to be original in order for copyright to subsist in them.

However, the claimants did have to establish "substantiality", in view of the well-known rule in the Act that "an act restricted by the copyright in a work" constitutes infringement only if it is done either to the work in its entirety, or to any substantial part of it .This prima facie represented a major problem for the claimants, given that the court considered each relevant work to be a broadcast of two hours in duration, and each extract from it for which the defendants were responsible was no more than eight seconds in...