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“Eight-Second Sports Clips”

Decision of the England and Wales High Court (Chancery Division) 18 March 2016 – Case No. [2016] EWHC 575 (Ch)
  • England and Wales Cricket Board Limited and Sky UK Limited v. Tixdaq Limited and Fanatix Limited Berne Convention for the Protection of Literary and Artistic Works, Arts. 2, 9, 10bis, 11bis, 20; Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Arts. 13, 15, 22; TRIPS Agreement, Arts. 9, 13, 14; WIPO Copyright Treaty, Arts. 1, 3, 8, 10; Directive 2001/29/EC (Information Society Directive), Arts. 2, 3, 5; Directive 2001/31/EC (E-Commerce Directive), Arts. 12, 14, 15; UK Copyright, Designs and Patents Act 1988, Arts. 1, 16, 17, 20, 30, 178
Decision • Copyright Law United Kingdom
  • 26 Downloads
  1. 1.

    Quantitatively, 8 seconds are not a large proportion of a broadcast or film lasting two hours or more. Qualitatively, however, 8 second clips can constitute a substantial part of the relevant copyright work(s) when they are able to exploit the right holder's investment in producing the relevant broadcast and/or film. Such is the case when most sport clips uploaded constitute highlights of the respective matches.

     
  2. 2.

    The mere fact that the particular service offered by an alleged infringer is not presently available from the copyright owner does not make the alleged infringer’s use of the copyright works fair dealing. That is particularly so if there is the potential for the copyright owner to licence such a service in the future.

     
  3. 3.

    The reproduction and communication to the public of clips from broadcasts and films via an app – even if limited in terms of availability, accessibility and uploading in the way presented in this case – are not protected by the defence of fair dealing for the purpose of reporting current events when the use is not made with such a purpose or, if it is, the extent of the use is not mainly justified by the informatory purpose. Accordingly, it infringes copyrights in those works.

     
  4. 4.

    A copyright fair dealing exception for the purpose of reporting current events does not apply when sport clips are reproduced and communicated to the public primarily and predominantly for purposes of (i) sharing the clips with other users and (ii) facilitating debate amongst users about the sport events depicted, in a way that the objective of the reproduction and of the communication to the public is purely commercial rather than genuinely informatory.

     
  5. 5.

    The use of the aforementioned sport clips can infringe copyrights due to the insufficient acknowledgement of the footage source.

     
  6. 6.

    The reproduction and communication to the public of the aforementioned sport clips via website and social media accounts also infringes copyrights.

     

Keywords

Sport clips Reproduction Communication to the public Fair dealing Sufficient acknowledgement Purpose of reporting current events 

Copyright information

© Max Planck Institute for Innovation and Competition, Munich 2017

Authors and Affiliations

  • England and Wales Cricket Board Limited and Sky UK Limited v. Tixdaq Limited and Fanatix Limited Berne Convention for the Protection of Literary and Artistic Works, Arts. 2, 9, 10bis, 11bis, 20; Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Arts. 13, 15, 22; TRIPS Agreement, Arts. 9, 13, 14; WIPO Copyright Treaty, Arts. 1, 3, 8, 10; Directive 2001/29/EC (Information Society Directive), Arts. 2, 3, 5; Directive 2001/31/EC (E-Commerce Directive), Arts. 12, 14, 15; UK Copyright, Designs and Patents Act 1988, Arts. 1, 16, 17, 20, 30, 178

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