At 7 seconds, this happy llama is thankfully not infringing.*
How much do you need to reproduce a video or broadcast in order to infringe copyright? In the age of Vine, Periscope and animated gifs, this question has become more important than ever. We now may have a partial answer in the case of England And Wales Cricket Board Ltd v Tixdaq Ltd.
The claimants in the case are Sky and the E&W Cricket Board (EWCB), which own the copyright in most live cricket broadcasts. The defendants operate the website Fanatix, which offers sport news, video and commentary. Fanatix’s users uploaded a considerable amount of 8 second cricket clips to the Fanatix companion app, and these were also available in other social media operated by the defendants. The claimants argue that these clips infringe their copyright, while the defendants argued that these fall under fair dealing for reporting and news coverage. Interestingly, the defendants also used an intermediary liability defence, arguing that they were simply mere conduits and hosting content uploaded by third parties.
The case analyses the Fanatix app, which is designed to allow users to capture and upload 8 second clips, inspired by the popularity of Vine in social media, It must be pointed out that Vines are 6 seconds long, and not the subject of litigation (yet). Some of these clips were uploaded to the Fanatix website by employees and operators. Another important element of the litigation is that the app was advertised with the capture and sharing of sport video in mind:
“Capture, Caption. Share!
Create 8 second sports news snippets. Caption with Attitude. Share sports video with millions of fans.”
The case then rests on four important legal questions:
- Are the 8 second clips a substantial copying of the protected work, and therefore infringing copyright?
- If the answer is yes, is there fair dealing due to reporting?
- Were the clips properly attributed?
- If the answer to the above is affirmative, is Fanatix liable for the content uploaded by its users?
I’ll largely ignore number 3, and concentrate on some of the other legal questions.
After analysing several applicable law and cases, Arnold J uses Infopaq to ascertain that a clip must “contain elements which are the expression of the intellectual creation of the author.” In an excellent analysis of the law in this area, Arnold J says:
“I do not consider that it follows that reproduction of any part of a broadcast or first fixation amounts to an infringement. The broadcaster or producer’s investment does not justify making reproduction of an insubstantial part an infringement. Nor does it follow that the test is a purely quantitative one. At least in the case of broadcasts and first fixations of films of sporting events, broadcasters and producers invest in the production of broadcasts and first fixations knowing, first, that some parts of the footage of an event (e.g. wickets in the case of cricket matches and goals in the case of football matches) will be more interesting to viewers than other parts and, secondly, that there is a market for highlights programmes and the like in addition to the market for continuous live coverage. It is for these reasons that broadcasters and producers invest, among other things, in the technology to produce action replays of particular events, which often involve editing footage from multiple camera angles, close-ups, slow motion and the like.”
This is a very astute reading of the qualitative element of copyright. The mere reproduction of a part of a work is not enough to warrant infringement, only the copying of substantial parts of the work is what matters, and it is easy to determine substantiality (not sure if this is even a word) in sport broadcasts, they tend to be the highlights: scores, wickets, home runs, goals, etc.
So the answer of the first question is a combination of qualitative and quantitative analysis that has to be performed for each reproduction, but here we see that Arnold J has established that if the clip reproduces an important part of a match, it is likely to be substantial copying, and therefore infringing. While he acknowledges that there may be clips that do not meet the substantial test, this fact does not assist the defendants.
Here the question was rather more straightforward. Using European law and the three-step test, Arnold J analysed whether the 8 second clips could conform to an exception of copyright. He cites a good number of authorities here, but he lists a number of elements that have to be considered when looking at whether something may fall under fair dealing for reporting purposes. These are:
- whether the alleged fair dealing is competing commercially with the claimant;
- whether the reproduction is done to engage in political controversy or ventilate a grievance;
- whether the content has already been made available to the public;
- whether an important part has been taken;
- the court may also analyse motives; and
- accompanying material to the reproduction.
Arnold J does not think that some of the clips in some versions of the app are not for the purpose of reporting current events. He says:
“The clips were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value. Furthermore, although the fact that a news service is a commercial one funded by advertising revenue does not prevent its use from being for the purpose of reporting current events, I consider that the Defendants’ objective was purely commercial rather than genuinely informatory.”
To my view, this could have been one of the most important parts of the ruling, but Arnold J deals with it with surprising expediency due to the facts of the case. While on the face of it Fanatix was simply a platform that allows users to upload and share sport clips, Arnold J took quite a lot of interest in the advertising, perhaps thinking of the American inducement doctrine in Grokster without actually using it as an authority. He does cite L‘Oréal SA v eBay International extensively, in particular the fact that eBay had been participating in the infringement actions of its users for commercial gain. Instead of providing a neutral service, Fanatix had an “active role” and had knowledge of the actions of its users, evidenced by the fact that its employees would select clips to upload to the website. However, he says:
“For understandable reasons, this issue was not as fully argued as it might have been. In those circumstances, and given that it is not necessary to do so, I have not reached a conclusion on this issue. My provisional view is that, in the light of L’Oréal v eBay, the Article 14 defence would be available to the Defendants in respect of user-posted clips which were not editorially reviewed, but not in respect of clips which were editorially reviewed. As I understand it, to date most clips have been editorially reviewed even if they have not been selected for inclusion in, say, the Latest feed.”
So the issue of intermediary liability was not central to the case after all, particularly because it was overshadowed by the other two questions, but I also think that it was because the conclusions and the facts strongly favour the claimants.
Arnold J concludes that while not flagrant, the clips were for the most part infringing, and they do not fall under fair dealing for reporting. As stated above, he does not conclude on the intermediary liability section.
Overall, I tend to agree with the decision. The app was almost entirely designed to allow users to capture and upload clips, which at the very least could be considered to be borderline copyright infringement. I was not swayed either by the fair dealing defence. I would have liked a lengthier explanation about the intermediary liability elements, but I can understand why this was not so relevant in this instance.
In my opinion, the main question to arise from this case is whether it will be used to attack other social media where sport clips are reproduced on a daily basis. You just need to open Twitter during an important sports event, and if you look at the relevant hashtag you will find a flood of vines and gifs of the scores, goals and highlights. However, these will require a very different legal analysis from that which was performed in this case. In my opinion Fanatix has as a sole purpose the sharing of sports clips, while Twitter, Vine and other similar technologies have considerably more uses.
* Embedded videos from Youtube do not infringe anyway as per BestWater. But let’s not allow legal facts get in the way of a good prancing llama clip, shall we?