Summary

  • The High Court has held that the defence of fair dealing for the purpose of reporting current events (s.30(2) CDPA) did not protect the reproduction and communication to the public of eight second clips of cricket matches on a mobile phone app.  
  • To rely on the defence, the primary purpose must be the reporting of current events. Here, this was held not have been the case.  
  • The test of substantiality should be qualitative as well as quantitative, and have regard to the extent to which the reproduction exploited the producer’s investment.  
  • Following L'Oreal v eBay, the court confirmed that the Article 14 hosting defence would only have been available in respect of user-posted clips which were not editorially reviewed.

Background

  • The claimant was the England and Wales Cricket Board ("ECB"), cricket’s governing body. It had entered a broadcasting agreement with Sky TV in 2012.  
  • The defendants ran the website www.fanatix.com and a fanatix app.  
  • The case involved the use of two types of copyright work: television broadcasts of matches, and recordings of broadcast footage (for particular use in action replays).  
  • By using screen capture technology, users of the fanatix app (as well as the defendants) were able to upload eight-second clips of match broadcasts.  
  • The features of the defendant's app changed over time:  
    • from v8.3 users were required to attribute clips to the source broadcaster, or confirm they contained no third party broadcast footage;
    • from v8.3.2 users were required to add at least 70 characters of commentary to each clip;
    • v8.5 used an algorithm restricting the footage from each match that could be viewed within a 24-hour period.  
  • The claimants claimed copyright infringement.  
  • The defendants relied on the defence of fair dealing for purposes of reporting current events, as well as the safe harbours for acting as a mere conduit and hosting in Articles 12 and 14 of the E-Commerce Directive.

Detail

  • Mr Justice Arnold noted that the copyright works in question were broadcasts and films, and therefore signal rights. There was no originality requirement for copyright to subsist in them.  
  • In the context of signal rights, the correct test for what amounts to a substantial part of the works was held to be both qualitative and quantitative. The substantial part of the works was the part for which there was the rationale for protection - the investment made by the producer or broadcaster.  
  • Although the 8 second clips were not, in the context of a day's play, or even a morning's session, quantitatively significant, each clip was one of the highlights of the play, and was therefore highly significant in qualitative terms. As such they substantially exploited the claimant's investment  
  • In considering the fair dealing defence, Mr Justice Arnold noted that s30(2) CDPA must be construed in accordance with Art 5(3)(c) of the InfoSoc Directive, and that an assessment of fair dealing should therefore consider whether the extent of the use is justified by the informatory purpose.  
  • The court then considered whether the purpose of the reproduction and communication was the reporting of current events, and held that a sporting event was a current event within meaning of s30(2) CDPA.  
  • The purpose of 30(2) was, in the public interest, to limit copyright protection and should be interpreted broadly. It should be given a "living" interpretation, taking into account developments in technology and media. This should include - as an example - "citizen journalism" where current events are captured on a mobile phone and uploaded to social media, often with little commentary.  
  • However, in this case Mr Justice Arnold found that sharing clips with other users was the primary purpose of the reproduction and communication, not informing the audience about a current event. The clips were intrinsically interesting, and comments were added to the clips, rather than clips being added to a report.  
  • In considering the Ashdown factors, he found that the defendants use was commercially damaging to the claimants in that it:  
    • conflicted with the normal exploitation of the copyright works;
    • reduced the attractiveness of Sky’s live broadcasts; and
    • conflicted with ECB’s own use of the clips.  
  • The amount and importance of the works taken could not be justified by the informatory purpose, and on overall balance, did not amount to fair dealing.  
  • The court also considered whether there was a sufficient degree of acknowledgement. The defendants had relied on users capturing broadcasters’ on-screen logo, and this had not always been present. Some of the clips would therefore have infringed in any event.  
  • Finally the court briefly considered the conduit and hosting defences under Articles 12 and 14 of the E-Commerce Directive. It was held that Article 12 would not provide a defence as the defendant's service involved both transmission and storage, and the Article 14 defence would only have been available in respect of user-posted clips that had not been editorially reviewed.

Comment

  • Some of the most interesting comments come in relation to the scope of the hosting defence (article 14).  Arnold said that the hosting defence was lost in respect of content they had manually reviewed, however stayed in tact for other areas of the site where there was no manual review (ie genuine UGC spaces).  That approach follows a similar approach by the courts in France in the Dailymotion case (2014).   
  • Mr Justice Arnold provided useful guidance on assessing whether a substantial part of a work was infringed, particularly in respect of the need for both a qualitative and quantitative test. Furthermore, there was a conceptual similarity to the test applied in respect of literary and artistic works which resulted in a similar practical effect.  
  • The judgment examined fair dealing for the purposes of reporting current events in some detail, and it will be interesting to see how a "living interpretation" of the defence develops.