Ruling could help rights holders clamp down on unauthorised sports clips apps, says expert

Last month the England and Wales Cricket Board (ECB) and Sky successfully brought a claim for copyright infringement against companies behind a mobile app that facilitates the online sharing of short video clips from sports broadcasts.

The fanatix app allows users to capture up to eight seconds of footage, add their own commentary to the clips and then share it online. The shared content features 'fanatix' branding and is displayed alongside adverts. Recent versions of the app contain more restrictions on use and require users to attribute the source of the pictures. 

The ECB and Sky claimed that the operators of the fanatix app were responsible for copyright infringement, something which the operators refuted.

Communicating copyrighted content to the public is an act generally restricted by copyright. The Copyright, Design and Patents Act states that copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public without rights holders' permission via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".

However, minor infringements of copyright are allowed to pass off without punishment under UK copyright laws. Copyright can only be infringed if the unauthorised use involves the whole or a 'substantial part' of the copyright work.

Mr Justice Arnold said that, in the context of broadcasts and first fixations of films, both the quality and quantity of the copied content must be assessed when determining whether it constitutes a 'substantial part' of the copyrighted material.

In the context of sports broadcasts, the judge said that some moments from matches, such as wickets in cricket or goals in football, will be more interesting to viewers and said unauthorised distribution of those clips might unfairly exploit the investment broadcasters make into the filming and editing of matches.

"Quantitatively, eight seconds is not a large proportion of a broadcast or film lasting two hours or more," the judge said. "Qualitatively, however, it is clear that most of the clips uploaded constituted highlights of the matches: wickets taken, appeals refused, centuries scored and the like. Thus most of clips showed something of interest, and hence value. The majority of the clips also involved action replays... Thus each clip substantially exploited [the ECB and Sky's] investment in producing the relevant broadcast and/or film. Accordingly, in my judgment, each such clip constituted a substantial part of the relevant copyright work(s)."

The judge considered whether use of the copyrighted content by the fanatix app operators was protected by the 'fair dealing' defence to infringement.

UK copyright rules contain an exception which allows copyright material to be used without rights holders' permission for the purpose of reporting current events. This right is qualified, however, by an overarching principle that the use of the material in news reports is 'fair dealing'. In practice this means those using the material are generally restricted to using an amount that is reasonable and appropriate, which will vary from case to case.

The operators of the fanatix app argued that their use of the copyrighted material was protected under the 'fair dealing' defence. Mr Justice Arnold assessed different versions of the app, with latter versions including more viewing restrictions and an obligation to acknowledge the source of footage.

Mr Justice Arnold said that the company was pursuing a "purely commercial" objective and that its service was not "genuinely informatory" in the way required for the copyright exception of reporting current events to apply.

Even if the reproductions could be said to be for the purposes of reporting current events the fanatix app operators' use of copyrighted content could not be considered fair dealing, the judge said. He ruled that the use was "commercially damaging" to the ECB and Sky, was in "conflict with normal exploitation of the copyright works" and that the amount and importance of the works used in all versions of the app was not justified for an informatory purpose.

Sports law expert James Earl of Pinsent Masons, the law firm behind Out-Law.com, said: "This ruling should help put a clearer line in the sand with regards where the boundaries lie on the degree to which sports footage can be argued to be used on a 'fair dealing' basis and therefore not infringe copyright."

"The judgment also offers some guidance on when the courts will consider use of content to be for informatory purposes as opposed to for supporting or sustaining commercial business models. This distinction is important because where the latter applies the use of copyrighted material will have a greater impact on copyright holders and exclusive licensees," he said.

"The finding that the objective of the fanatix app service was purely commercial rather than genuinely informatory helps to show would-be app makers how the test will be applied. The vast majority of apps which support the posting of content in a similar manner will likely fall foul of copyright laws as a result as it will be difficult for them to claim their operations are purely informatory and that their use in that context is within the boundaries of fair dealing," Earl said.