Last month, Mr. Justice Arnold of the UK High Court handed down his decision in a case concerning the alleged infringement of the copyright in broadcasts and films of cricket matches. Though much of the judgment is fact-specific, it is of note for its findings as to what constitutes a ‘substantial part’ of a work of this kind, as well as the applicability of the defence that use of the work was ‘fair dealing for the purposes of reporting current events’ and, as such, not an infringing act. The case provides good guidance for technology companies such as app developers, as to what may and may not legitimately be copied.
Arnold J. ruled that the question of substantiality ought to be assessed qualitatively as well as quantitatively so that, in these particular circumstances, individual eight-second portions of films and broadcasts each lasting upwards of two hours could be said to be substantial parts of those works. He also indicated that use of a work that seeks to capitalise on the investment made by its author in its creation is unlikely to qualify for exemption as fair dealing under the relevant provisions.
As the central governing body for the sport, England and Wales Cricket Board Limited (the ECB) oversees the organisation and commercialisation of most of the cricket matches played by the England men’s and women’s teams in England and Wales. Together with Sky UK Limited, which broadcasts the matches, the ECB brought infringement proceedings against the owners of an iPhone app that allows users, through screen capture technology, to record clips of live TV broadcasts – in this instance, Sky’s broadcasts of the matches – and then to share those clips with other users by uploading them to the app. (As Arnold J. points out in his judgment, “it is worth noting that the visual quality of the clips is much better than one might expect”.) The clips can last up to eight seconds each, and users are instructed to add comments to the clips as they upload them.
The gist of the complainants’ claim was that each recording and uploading of a single eight-second clip infringed the copyright both in Sky’s films of the matches (that is, in the actual footage recorded by its cameramen) and in the eventual broadcasts of that footage. Each broadcast was made up of a selection of extracts from the films, edited together in a process requiring “substantial investment” on Sky’s part (including, for example, the creation of slow-motion action replays). The Defendants were said to be liable both directly, a number of the clips having been uploaded by their employees, and also jointly with those members of the public who had used the app to contribute their own clips.
The subsistence and infringement of copyright in the UK are governed by the Copyright, Designs and Patents Act 1988 (CDPA), amended a number of times to implement various European directives and other international treaties. Of these, the EU’s Information Society (‘Infosoc’) Directive, brought in in 2001 with a view to “harmonise certain aspects of copyright and related rights in the information society”, is of particular relevance to this case and was relied upon more than once by the Judge as he interpreted and applied the UK legislation.
Under these combined provisions, copyright subsists not only in certain authorial works, such as literary and artistic creations (so-called content rights) but also in sound recordings, films and broadcasts (signal rights). Content rights in the UK exist only to the extent that the relevant work is original, in the sense of being the author’s own intellectual creation, but there is no such restriction on signal rights of the kind at issue here. In other words, broadcasts and films of all manner and description enjoy automatic exclusivity from the moment at which they are made.
Specifically, copyright gives an owner (in this case, the broadcaster or film producer) the exclusive rights to copy his work and to communicate it to the public. However, under UK law this only applies in relation either to the work as a whole, or to any ‘substantial part’ of it. On this basis, the first major line of defence run by the app’s owner companies was that, given the length of a typical cricket match – and consequently, of the relevant broadcasts and films – reproduction of a clip lasting a mere eight seconds could not possibly be held to infringe the Claimants’ copyright.
In addition, the Defendants argued for the application of various exemptions provided for by the UK and European legislation. In particular, ‘fair dealing’ with a copyright work for the purposes of reporting current events does not infringe any copyright (provided it is accompanied by sufficient acknowledgement), and the owners of the app submitted that the use of their services to capture and share clips was precisely this – a fair reporting of current events – and ought to be excused on those grounds.
Mr. Justice Arnold began by noting the overriding desire to keep any application of the UK infringement provisions consistent with both the Infosoc Directive itself and the relevant European case law. In particular, although the concept of substantiality does not feature explicitly in the European legislation (according to the Directive, the reproduction of any work in whole or in part is an act restricted by copyright), similar principles have come into being through the recent jurisprudence of the Court of Justice of the European Union (CJEU).
Those judgments (as well as the relevant UK authorities) have predominantly addressed the question of substantiality in the context of authorial works. In particular, the CJEU in 2009 ruled in the case of Infopaq International A/S v Danske Dagblades Foregning that “[the relevant provisions] of the Infosoc Directive are to be interpreted by reference to the rationale for providing protection, which in the case of literary and artistic works is the intellectual creativity they express” (Arnold J. at ).
The copyrights in films and broadcasts, on the other hand, are entrepreneurial rights, which exist to protect not the intellectual creativity of an author but the investment of film producers and broadcasters. However, Arnold J. reasoned that the core principles developed in Infopaq must extend analogously to rights of this nature, so that “the correct test of substantiality is to consider the degree of reproduction both quantitatively and qualitatively, having regard to the extent to which the reproduction exploits the investment made by the broadcaster or producer” ().
The copied extracts complained of in this case were clearly insignificant from a quantitative perspective. However, Arnold J. gave weight to their qualitative significance: most of the clips showed highlights of the matches, such as the falling of wickets, scoring of centuries and appealing of decisions, and as such they were considered to reproduce content that was of particular interest and value. In short, it was footage that people wanted to see. In addition, since the majority also involved action replays they were deemed to have “substantially exploited the Claimants’ investment in producing the relevant broadcast and/or film”. As a result, the Judge found that use of the app to reproduce and share even a single, eight-second clip had taken a substantial part of the works and so, did infringe the Claimants’ copyright.
There was little dispute at trial that the matches in question constituted current events, not least because the clips were typically uploaded on a near-live basis. Taking the remainder of the defence in two halves, Arnold J. first pointed out that the purpose of the relevant provisions is to provide an exception in the public interest. Consequently, he reasoned, the term ‘reporting’ should be given a broad interpretation, and one which evolves to account for developments in the way in which media are shared societally. From that perspective, he concluded that “‘citizen journalism’ [such as uploading a clip to an app together with even a short segment of commentary] can qualify as reporting current events”.
Nevertheless, the Judge considered the defence to be inapplicable in this case. In his view, the evidence (in particular, the way in which the app was presented to investors, and then advertised commercially) pointed clearly to the fact that its primary purpose was not to inform the intended audience of sporting developments, as it would have been had it been conceived as a truly journalistic service. Rather, the Defendants sought to provide a platform for the sharing of clips and to facilitate debate among users. (As Arnold J. put it, “users add comments to the clips they are uploading, they do not create a report to which they add clips” ().) On those grounds, the Defendants’ purpose was seen to be “purely commercial”, rather than informatory, in nature, and so to fall outside the safe harbour of current event reporting.
Turning separately to the question of fair dealing, and again looking to the European legislation for interpretive guidance, Mr. Justice Arnold considered the key factor in this regard to be “whether the extent of the use is justified by the informatory purpose”, and in particular the degree of any conflict with the proprietors’ normal exploitation of their works. In this case, the evidence was that the app’s services were commercially damaging to the Claimants: not only was there a direct conflict with Sky’s own live broadcasts, but the Defendants’ activities had also made a significant negative impact on existing and proposed agreements with third party licensees. Additionally, the relevant versions of the app placed no limits on the number of clips that a user could upload, and the Defendants were seen to be seeking to “attract as many users as possible”. All of this meant that Arnold J. did not hesitate to conclude that the use of the copyrighted material was disproportionate and unwarranted, taking it outside the meaning of ‘fair dealing’ as the legislators had intended it.
This decision is clearly good news for broadcasters and film producers alike. With streaming services and content sharing platforms growing in popularity, it will be a comfort to know that even very short clips can be protected by exclusivity – particularly considering the degree of work that can go into producing more complicated sequences such as multi-angle, slow-motion replays.
In extending the principles of Infopaq beyond application to literary works and into the realm of signal rights, Mr. Justice Arnold’s conclusions as to substantiality provide some good guidance for technology companies operating within this space as to what may and may not legitimately be copied. These conclusions ought to reach far beyond the factual matrix of this particular case, and it will be interesting to see whether and how and they are applied to works of other descriptions in the future.
The judgment also carries a warning that any use of protected material that seeks to take undue advantage of the investment on the part of broadcasters and film producers is unlikely to be regarded as fair dealing, whether for the purpose of reporting current events or otherwise.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.