In an age when sports broadcasting deals involve millions if not billions of pounds, it is not surprising that broadcasters and governing bodies will take all the steps they can to stop anything that they see as infringing their intellectual property rights.
Sky and the ECB (the governing body for cricket in England and Wales) are the latest to do just that and have successfully argued that a company which provided a platform for users to upload eight second clips of, amongst other things, broadcasts of cricket was infringing the copyright in those broadcasts.
For lawyers, the case was interesting for a number of reasons. Two stand out. Firstly, it provided further clarity on what can be considered a ‘substantial part’ of a broadcast and, secondly, it gave guidance on the defence of fair dealing for the purposes of reporting current events.
In order for a copyright owner to successfully argue that its copyright has been infringed it has to be able to show that a “substantial part” of the original work has been copied. The test as to whether this is the case is not a quantitative one but a qualitative one (i.e. it isn’t the amount which is copied but the importance of what is copied that matters). In this case, because the uploaded clips were of the important bits of the matches and they exploited Sky’s investment in producing the broadcast, they were considered to be a substantial part even though they were tiny in relation to the session of play in which they took place (a session lasts for two hours).
Fair dealing for reporting news events
“Fair dealing” is a vague term but in a nutshell it is used to set a limit on certain defences that exist in copyright law. The idea is that you can, for example, reproduce copyright work for reporting current events (the defence relied on in this case) but only if that use can be considered fair dealing.
The judge dissected the wording of this piece of law in fine detail. He decided that reporting news events did not just mean the traditional type of reporting – it could include “citizen journalism” (i.e. reporting of events by a member of the public even if on a website or social media platform). However, although the clips in question fell within this definition, the use of them was not “fair” because it effectively operated in competition with the Sky broadcasts – the value of Sky’s rights was therefore reduced – and the defendant was making money from its service through advertising revenue.
Sky and the ECB therefore got the result they wanted and it’s likely this case will be used to bring more claims against similar platforms in future.