England and Wales Cricket Board Ltd v Tixdaq Ltd and another  EWHC 575 (Ch) is a decision of Mr Justice Arnold concerning an iPhone/iPad app, which allowed the sharing of eight-second clips of sporting events (inspired by the better known Vine app).
The defendants (together “Fanatix”), which also operate a website directed at sport fans, launched the app in 2015 and, amongst many sporting events, it featured footage from Sky’s coverage of England v New Zealand cricket games. The ECB objected to this use and sued for copyright infringement.
The dispute centred around whether the eight-second clips amounted to a “substantial part” of ECB’s copyright works, namely, broadcasts and films (and so were capable of infringing the works) and, if so, whether the fair dealing defence for “reporting current events” allowed Fanatix to use the footage.
The judge noted that users who selected the eight-second clips did so to extract interesting parts of sporting events. For this reason it followed that even a short, eight-second, clip was capable of satisfying the qualitative (rather than quantitative) test for the purposes of establishing that a “substantial part” of the broadcasts and films had been used. The clips used the valuable aspects of the footage and therefore exploited ECB’s investment in providing the broadcasts and films.
Turning to the fair dealing defence, the judge considered whether the clips were “for the purpose of” reporting current events. He found that any commentary was secondary to the use of the footage itself, taking it outside the exclusion.
He nevertheless considered the “fair use” aspect of the defence. The judge explored whether the use by Fanatix conflicted with ECB’s exploitation (either current or future) of the copyright works. He held that Fanatix’s use was commercially damaging to ECB – it encroached on what ECB was entitled to do with the works.
The judge noted Fanatix’s business case to investors, which demonstrated they were trying to overcome traditional approaches to licensing sports content, and commented that it was “pushing legal boundaries” (even though seeking to act lawfully).
The case is a reminder that the degree of reproduction of a work does not need to be quantitatively substantial in order to amount to use of a “substantial part”. The key is the quality of the extracted part. It also highlights that, ultimately, pushing the boundaries particularly for commercial purposes, when faced with copyright content, is unlikely to be considered fair use. A copyright holder has the right to fully exploit its copyright works and may therefore look to take a slice of a new venture using such works by way of a licence fee (or possibly stop the new venture altogether). New app developers beware.