Fair dealing gets bowled out

Can copying 8 seconds of a cricket match lasting around 2 hours constitute copyright infringement?

According to the High Court of Justice Chancery Division in England And Wales Cricket Board Ltd & Anor v Tixdaq & Anor [2016] EWHC 575 (Ch) it can. The case is also noteworthy as a fair dealing defence was ran.

Facts
ECB and Sky own copyright in TV broadcasts in cricket matches organised by ECB and films made during the course of the broadcasts (e.g. action replays).

Tixdaq and Fanatix operated an app which allowed users to upload screen captured clips of broadcast footage lasting up to 8 seconds. The app required users to attribute the clips to a broadcasting source or, to confirm that it does not contain third party footage and to add a 70-character commentary.

ECB and Sky commenced proceedings for copyright infringement in its broadcasts and films against Tixdaq and Fanatix. The defendants principally Drafted relied on the defence of fair dealing for the purpose of reporting copyright current events.

Decision
Substantial part
• In order to consider whether copyright had been infringed the Court had to decide whether clips lasting up to 8 seconds long constituted a substantial part of broadcasts or films which were around two hours long. In determining this Court found that copyright protection is granted to parts that reflect the rationale for protecting broadcasts/films (in other words the investment made by the broadcaster/producer). With this in mind the Court found that 8 seconds was a substantial part of the copyright works as the clips related to wickets taken, appeals refused and centuries scored.
Fair dealing for the purpose of reporting current events
• Prior to considering whether the use of the clips was fair the Court had to consider and find their use was for the purpose of reporting current events. Here the Court found that ‘reporting current events’ should be interpreted broadly. However, from reviewing the evidence the Judge came to the conclusion that the clips were reproduced primarily for in the purpose of sharing with other users. The fact that the users had to provide comments to the clips did not make a difference. As a result they were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value.
For completeness the Judge also considered whether if the clips had been found to be produced for the purpose Morgen of reporting current events their use would have been fair.

Here the Judge found that the defendants use did not constitute fair dealing. This was because defendants use was commercially damaging to the claimants, it conflicted with the claimants’ exploitation of the broadcasts and films and the importance of the works taken could not be justified by the informatory purpose of the clips.

Briffa Comment

This is a very import decision for copyright holders. It illustrates that it will be very hard for a potential defendant to run a fair dealing defence. The case is also a positive step for copyright holders as it seems there is not a high quantitative threshold as to what constitutes an infringement of their copyright works. With these points in mind it is always best to ask the copyright holder for permission to use their work.

In terms of fair dealing, this case should not be seen as rendering the defence completely hopeless. In this case parts that reflected the investment made in the works were copied. In addition a defence of fair dealing for the purpose of the quotation is likely to have eluded the issues the defendants had with convincing the Court that the clips were for the predominant purpose of reporting current events.

Finally the Court emphasised that the following factors are relevant to fair dealing. They are accordingly worth considering in each case:
• Whether the alleged fair dealing commercially competed with the exploitation of the copyright work;
• Whether the work has already been published.
• The amount and importance of the work taken. Is it justified by the informatory purpose