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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor  EWHC 575 (Ch) (18 March 2016)
Cite as:  WLR(D) 169,  Bus LR 641,  EWHC 575 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| (1) ENGLAND AND WALES CRICKET BOARD LIMITED
(2) SKY UK LIMITED
|- and -
|(1) TIXDAQ LIMITED
(2) FANATIX LIMITED
James Mellor QC and Maxwell Keay (instructed by Lee & Thompson LLP) for the Defendants
Hearing dates: 29 February-2, 4 March 2016
Crown Copyright ©
MR JUSTICE ARNOLD :
|The Claimants' witnesses||6|
|The Defendants' witnesses||7|
|The Claimants' copyright works||8-9|
|Exploitation of the Claimants' copyright works||10-15|
|Sports News Access Code of Practice ("SNAC")||16-20|
|The genesis of the dispute||21-28|
|The evolution of the App||33-38|
|The Social Media Accounts||40|
|The legislative context||41-52|
|WIPO Copyright Treaty||44-46|
|Information Society Directive||47-48|
|Copyright, Designs and Patents Act 1988||50-51|
|Electronic Commerce Regulations||52|
|Applicable legal principles||53-93|
|Interpretation of domestic legislation in the context of European directives||53|
|Interpretation of European directives||54-57|
|Copyright in broadcasts and films||58-59|
|Interpretation of section 30(2) in accordance with Article 5(3)(c)||68-70|
|The CJEU's approach to the interpretation of exceptions||71|
|The relevance of Article 5(5)||72|
|The relevance of Article 10 ECHR and Article 11 of the Charter||73|
|Domestic authorities on the interpretation of section 30(2)||74|
|"For the purpose of"||75|
|"Reporting current events"||76-82|
|The three-step test||88-92|
|Mere conduit and hosting||93|
|Liability for the commission of any infringing acts||94|
|Was each clip a substantial part of one of the Claimants' copyright works?||95-102|
|Scale of use||103-104|
|Assessment of the fair dealing defence: versions 8.2 and 8.3 of the App||105-151|
|Was the use for the purpose of reporting current events?||106-129|
|Were the clips accompanied by a sufficient acknowledgement?||130-135|
|Was the use fair dealing?||136-150|
|Does the use conflict with normal exploitation of the works?||137-147|
|Have the works been published?||148|
|The amount and importance of the work taken: is it justified by the informatory purpose?||149-150|
|Assessment: versions 8.3.2 and 8.4 of the App||152-156|
|Was the use for the purpose of reporting current events?||154|
|Were the clips accompanied by a sufficient acknowledgement?||155|
|Was the use fair dealing?||156|
|Assessment of the fair dealing defence: versions 8.5 to 8.5.4||159-166|
|Is the use for the purpose of reporting current events?||160|
|Are the clips accompanied by a sufficient acknowledgement?||161|
|Is the use fair dealing?||162-166|
|Mere conduit or hosting||167-171|
|The website and the Social Media Accounts||172|
|Summary of principal conclusions||174|
The Claimants' witnesses
i) Sanjay Patel is the Commercial Director of the ECB.
ii) Richard Verow is the Commercial Director of Sky Sports at Sky.
iii) Philip Davies is Head of Cyber Security and Content Protection at Sky.
iv) David McLean is the Head of Media Rights and Video Services at News Corp UK & Ireland Ltd ("News UK").
v) Paul Molnar is the Director of Broadcasting at the Football Association Premier League Ltd ("FAPL"). FAPL is not directly involved in these proceedings, but it is interested because the Defendants' services also feature clips of broadcasts of Premier League football matches (as well as other sporting events).
vi) Richard Burgess is Head of Sports News and Radio Sport at the British Broadcasting Corporation ("the BBC"). Through no fault of his own, Mr Burgess was placed in a difficult position. The Claimants asked the BBC to verify the accuracy of Mr Grigg's analysis of the BBC's use of Sky cricket broadcasts (as to which, see below). The Claimants failed, however, to provide the BBC with copies of Mr Grigg's recordings (i.e. the data underlying his analysis). Mr Burgess responded to this request in a letter which the Claimants served under cover of a hearsay notice. Unsurprisingly, the Defendants asked to cross-examine Mr Burgess. The analysis contained in his letter had not been carried out by Mr Burgess personally, but by a BBC team. The letter did not explain the methodology they had followed or include the underlying data they had analysed. Mr Burgess was not sure of the methodology employed, and had difficulty in explaining discrepancies between the BBC analysis and Mr Grigg's.
vii) Richard Moyes is a forensic expert employed by the Federation Against Copyright Theft Ltd ("FACT"). Although Mr Moyes was called as an expert witness, his evidence did not involve his expertise in computer forensics. Rather, it involved testing the functionality of the Website and App and recording the results. As such, it was what I would describe as quasi-expert evidence, in that it needed to be prepared in a methodical, thorough, objective and transparent manner. Counsel for the Defendants submitted that Mr Moyes had not even attempted to produce a fair and balanced report on the functionality of the Defendants' service. I do not accept this criticism of Mr Moyes' evidence. His instructions were to ascertain whether the restrictions relied on by the Defendants were consistently applied and/or could be avoided by users, and that is what he did. The Defendants do not suggest that his conclusions were inaccurate.
The Defendants' witnesses
i) William Muirhead is the Chief Executive Officer, a director and a shareholder of the First Defendant, and a director and the sole shareholder of the Second Defendant. Counsel for the Claimants submitted that Mr Muirhead was not an honest witness. I do not accept this, although I do agree that some of the evidence in his first witness statement was not entirely frank and that there was a troubling discrepancy between what he had told investors about the extent of use of the App and his evidence to the court. Mr Muirhead was, however, a distinctly argumentative witness who was determined to answer questions in accordance with the Defendants' case. Given the nature of the issues, on the other hand, this is not of great significance.
ii) James Grigg was formerly the Defendants' Chief Operating Officer. He is now employed elsewhere. Mr Grigg gave evidence about an evidence-gathering and analysis exercise that he and a team of the Defendants' employees carried out which involved the recording and analysis of broadcasts of cricket by the BBC News channel, ITN, Channel 4 and Channel 5 and comparing it with what had appeared on the App. Mr Grigg's evidence was adduced as evidence of fact, rather than as expert evidence. Like Mr Moyes' evidence, it was quasi-expert evidence. There was no real challenge to the methodology Mr Grigg employed or to the accuracy of his analysis so far as it went.
iii) Stephen Griffiths is Vice President of Engineering. He gave evidence about the operation of the algorithm incorporated in version 8.5 of the App (as to which, see below).
The Claimants' copyright works
Exploitation of the Claimants' copyright works
Sports News Access Code of Practice ("SNAC")
i) SNAC only applies to "linear television broadcast channels offering bona fide news programmes regardless of the method of delivery of such channel" (paragraph 9 of the preamble).
ii) SNAC only permits the inclusion of sports footage in News, Regional News and Local News programmes (clause 2). It expressly does not permit the inclusion of such footage in other programmes such as specialised sports news programmes which were the subject of the decision in BBC v BSB (clause 3.4).
i) In general, a maximum of 60 seconds of footage from a sports event can be shown in a news item reporting that sports event (clause 4.2).
ii) For a certain class of "specified events", a maximum of 90 seconds of footage can be shown in a news item reporting that specified event (clause 5.2). Cricket test matches fall within the class of specified events (clause 1.12).
iii) No more than six minutes of sports footage in total can be shown in any single programme hour (clause 8).
iv) An extract can be shown no more than six times in news programmes on any one national channel (clause 9.1).
The genesis of the dispute
"My immediate thought was how this might impact the sports media markets. I thought that the ability for individuals to easily capture content from their televisions with their smartphones and to share it over social networks was going to quickly lead to the development of short-video sharing services focussed on sports events."
i) The Defendants' employees and contractors, and members of the public who have downloaded the App, use screen capture technology to copy clips of broadcast footage of sporting events. They then upload the clips to the App. Each clip can last up to 8 seconds. It is worth noting that the visual quality of the clips is much better than one might expect.
ii) Users are instructed to add commentary to the clips they upload. During the upload process the user is told to "Let other fans know about the action you've captured…" In more recent versions of the App, users are also instructed to attribute the clip to a particular broadcaster, where applicable, and a particular sports event.
iii) The Defendants superimpose a "fanatix" logo on each uploaded clip.
iv) The App has, or used to have, sections known as "Trending", "Latest", "My Feed", "News" and "Games". The Trending section is no longer a feature of the App and so I will not describe it. The Latest section contains clips posted by "whitelisted users" (employees or contractors of the Defendants) and clips posted by ordinary users which have been selected by the Defendants' employees. The My Feed section contains clips posted by other users whom the user "follows", clips commented on by such users and clips posted by whitelisted users which are matched against the user's favourite teams. The News section contains social media items related to the user's favourite teams, clips posted by whitelisted users and matched against those teams and clips selected for inclusion by the Defendants' employees. The Games section is only relevant to football.
v) Users can browse and search the clips that they and others have uploaded. Each clip will play repeatedly once selected until the user moves on.
vi) Subject to the restrictions discussed below, the App enables clips to be posted seconds after the incidents depicted throughout the match. Thus it enables users to create and view highlights on a near-live basis.
vii) The Defendants send users so-called Apple push notifications to alert them to the availability of new content of interest to them.
viii) Advertisements are displayed to users.
"Capture, Caption. Share!
Create 8 second sports news snippets. Caption with Attitude. Share sports video with millions of fans."
The evolution of the App
|Jan 2015||Alpha||8 seconds maximum.
Users instructed to add commentary.
|11.05.15||v.8.2||Landscape functionality (to increase capture of broadcaster's logo).|
|09.07.15||v.8.3||Formal attribution process.|
|15.08.15||v.8.3.2||Clips removed after 24 hours.
Minimum 70 characters of commentary.
Maximum 2 clips per hour.
|21.12.15||v 8.4||"Pictures from".
Obligation to associate with sport event.
|14.01.16||v 8.5||Additional restrictions applied via the algorithm.
No sharing to third party platforms unless they apply the same restrictions.
|20.01.16||v 8.5.1||Refinements of the algorithm.|
|27.01.16||v.8.5.2||Algorithm fully operational.|
|12.02.16||v. 8.5.3||Correction of algorithm.|
|23.02.16||v. 8.5.4||Correction of algorithm.|
i) users have been required to add at least 70 characters of commentary before a clip can be uploaded;
ii) users are restricted to uploading a maximum of 16 seconds (two 8 second clips) per hour and the amount of content uploaded to the editorially controlled feeds is restricted to 16 seconds (two 8 second clips) per hour from each sports event; and
iii) all clips are removed after 24 hours unless one of the Defendants' employees or agents prevents this using an "eternal" function, which they are only supposed to if the clip contains no third party broadcast footage. (As Mr Muirhead accepted, however, the eternal function has occasionally been used incorrectly.)
The Social Media Accounts
The legislative context
(1) The expression 'literary and artistic works' shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.
The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable."
Broadcasting organisations shall enjoy the right to authorize or prohibit:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts;
(c) the reproduction:
(i) of fixations, made without their consent, of their broadcasts;
(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions;
1. Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards:
(b) use of short excerpts in connection with the reporting of current events;
2. Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with this Convention.
Contracting States reserve the right to enter into special agreements among themselves in so far as such agreements grant to performers, producers of phonograms or broadcasting organisations more extensive rights than those granted by this Convention or contain other provisions not contrary to this Convention."
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
Limitation and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations
3. Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).
6. Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. …"
Relation to the Berne Convention
(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.
(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.
(3) Hereinafter, 'Berne Convention' shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.
(4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.
Application of Articles 2 to 6 of the Berne Convention
Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.
Right of Communication to the Public
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them
Limitation and Exceptions
(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author."
"Concerning Article 10
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."
"(15) The Diplomatic Conference held under the auspices of the World Intellectual Property Organisation (WIPO) in December 1996 led to the adoption of two new Treaties, the 'WIPO Copyright Treaty' and the 'WIPO Performances and Phonograms Treaty', dealing respectively with the protection of authors and the protection of performers and phonogram producers. Those Treaties update the international protection for copyright and related rights significantly, not least with regard to the so-called 'digital agenda', and improve the means to fight piracy world-wide. The Community and a majority of Member States have already signed the Treaties and the process of making arrangements for the ratification of the Treaties by the Community and the Member States is under way. This Directive also serves to implement a number of the new international obligations.
(31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.
(34) Member States should be given the option of providing for certain exceptions or limitations for cases such as educational and scientific purposes, for the benefit of public institutions such as libraries and archives, for purposes of news reporting, for quotations, for use by people with disabilities, for public security uses and for uses in administrative and judicial proceedings.
(44) When applying the exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter. The provision of such exceptions or limitations by Member States should, in particular, duly reflect the increased economic impact that such exceptions or limitations may have in the context of the new electronic environment. Therefore, the scope of certain exceptions or limitations may have to be even more limited when it comes to certain new uses of copyright works and other subject-matter.
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
Right of communication to the public of works and right of making available to the public other subject-matter
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.
Exceptions and limitations
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;
5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information
No general obligation to monitor
1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements."
"Copyright and copyright works
1.(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work-
(b) sound recordings, films or broadcasts, and
The acts restricted by copyright in a work
16.(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom –
(a) to copy the work (see section 17);
(d) to communicate the work to the public (see section 20);
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it –
(a) in relation to the work as a whole or any substantial part of it
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.
(4) This Chapter has effect subject to-
(a) the provisions of Chapter III (acts permitted in relation to copyright works)
Infringement of copyright by copying
17.(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
Infringement by communication to the public
20.(1) The communication to the public of the work is an act restricted by the copyright in--…(b) a sound recording or film, or(c) a broadcast.
(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include-(a) the broadcasting of the work;(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
Criticism, review, quotation and news reporting
(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.
(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast where this would be impossible for reasons of practicality or otherwise.
178. In this Part-
'sufficient acknowledgement' means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless –
(a) in the case of a published work, it is published anonymously;
(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;
Applicable legal principles
Interpretation of domestic legislation in the context of European directives
Interpretation of European directives
"According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case C-156/98 Germany v Commission  ECR I-6857, paragraph 50, and Case C-53/05 Commission v Portugal  ECR I-6215, paragraph 20)".
"Moreover, Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C-341/95 Bettati  ECR I-4355, paragraph 20 and the case-law cited)."
In that case the Court of Justice interpreted Article 3(1) of the Information Society Directive in accordance with Article 8 of the WIPO Copyright Treaty.
Copyright in broadcasts and films
"… the various parts of works thus enjoy protection under Article 2(a) …, provided that they contain elements which are the expression of the intellectual creation of the author."
Interpretation of section 30(2) in accordance with Article 5(3)(c)
The CJEU's approach to the interpretation of exceptions
The relevance of Article 5(5)
The relevance of Article 10 ECHR and Article 11 of the Charter
Domestic authorities on the interpretation of section 30(2)
"For the purpose of"
"In Sweet v. Parsley  AC 132 the House of Lords emphasised the importance of construing a composite phrase rather than a single word. It seems to me that in the composite phrases 'for the purposes of criticism or review' and 'for the purpose of reporting current events' the mental element on the part of the user is of little more importance than in such everyday composite expressions as 'for the purpose of argument' or 'for the purpose of comparison.' The words 'in the context of" or 'as part of an exercise in' could be substituted for 'for the purpose of' without any significant alteration of meaning.
That is not to say that the intentions and motives of the user of another's copyright material are not highly relevant for the purposes of the defences available under section 30(1) and section 30(2). But they are most highly relevant on the issue of fair dealing, so far as it can be treated as a discrete issue from the statutory purpose (arguably the better course is to take the first 24 words of section 30(1), and the first 16 words of section 30(2), as a single composite whole and to resist any attempt at further dissection). It is not necessary for the court to put itself in the shoes of the infringer of the copyright in order to decide whether the offending piece was published 'for the purposes of criticism or review.' This court should not in my view give any encouragement to the notion that all that is required is for the user to have the sincere belief, however misguided, that he or she is criticising a work or reporting current affairs. To do so would provide an undesirable incentive for journalists, for whom facts should be sacred, to give implausible evidence as to their intentions."
Thus, as is confirmed by later authorities, the question whether the use was "for the purpose of" reporting current events is to be judged objectively.
"Reporting current events"
"'Criticism or review' and 'reporting current events' are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be interpreted liberally, but I derive little assistance from comparisons with other expressions such as 'current affairs' or 'news' (the latter word being used in the Australian statute considered in De Garis v. Neville Jeffress Pidler Pty. Ltd. (1990) 18 I.P.R. 292). However it can be said that the nearer that any particular derivative use of copyright material comes to the boundaries, unplotted though they are, the less likely it is to make good the fair dealing defence."
"As this court said in Pro Sieben Media AG v Carlton UK Television Ltd  1 WLR 605, 614G, the expression 'reporting current events' should be interpreted liberally. The defence provided by section 30(2) is clearly intended to protect the role of the media in informing the public about matters of current concern to the public. That was the approach adopted in Fraser v Evans  1 QB 349 to the predecessor of section 30(2), and in our judgment it remains applicable to the present subsection."
"It is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression. However, by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like. If it is, the fair dealing defence will almost certainly fail. If it is not and there is a moderate taking and there are no special adverse factors, the defence is likely to succeed, especially if the defendant's additional purpose is to right a wrong, to ventilate an honest grievance, to engage in political controversy, and so on. The second most important factor is whether the work has already been published or otherwise exposed to the public. If it has not, and especially if the material has been obtained by a breach of confidence or other mean or underhand dealing, the courts will be reluctant to say this is fair. However this is by no means conclusive, for sometimes it is necessary for the purposes of legitimate public controversy to make use of 'leaked' information. The third most important factor is the amount and importance of the work that has been taken. For, although it is permissible to take a substantial part of the work (if not, there could be no question of infringement in the first place), in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negative fair dealing."
"72. … All that is required is that it is an identification, though I think that I can accept that it probably has to be one that can readily be seen and not require some form of hunting around or detective work. It is probably not enough to say that the author can be identified if you look hard enough; the authorship must be more apparent than that. …
75. … I do not think that the concept of identification means that there has to be a precisely or virtually contemporaneous act of identification. Once the identification has been provided then it is capable of operating in relation to a later appearance of the copyright material. …"
The three-step test
Mere conduit and hosting
"111. … the fact that the service provided by the operator of an online marketplace includes the storage of information transmitted to it by its customer-sellers is not in itself a sufficient ground for concluding that that service falls, in all situations, within the scope of Article 14(1) of Directive 2000/31. That provision must, in fact, be interpreted in the light not only of its wording but also of the context in which it occurs and the objectives pursued by the rules of which it is part (see, by analogy, Case C-298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände  ECR I-7841, paragraph 15 and the case-law cited).
112. In that regard, the Court has already stated that, in order for an internet service provider to fall within the scope of Article 14 of Directive 2000/31, it is essential that the provider be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive (see Google France and Google, paragraph 112).
113. That is not the case where the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data (Google France and Google, paragraphs 114 and 120).
114. It is clear from the documents before the Court and from the description at paragraphs 28 to 31 of this judgment that eBay processes the data entered by its customer-sellers. The sales in which the offers may result take place in accordance with terms set by eBay. In some cases, eBay also provides assistance intended to optimise or promote certain offers for sale.
115. As the United Kingdom Government has rightly observed, the mere fact that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France and Google, paragraph 116).
116. Where, by contrast, the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data, on the exemption from liability referred to in Article 14(1) of Directive 2000/31."
Liability for the commission of any infringing acts
Was each clip a substantial part of one of the Claimants' copyright works?
Scale of use
Assessment of the fair dealing defence: versions 8. 2 and 8.3 of the App
Was the use for the purpose of reporting current events?
"Discover: users are able to discover content posted by other fans as well as 3rd party content providers
Create: Users are also able to create content, such as video Replays and Huddles, to drive debate
Share: Users are able to share (Huddle) content they create and Huddle content created by users".
"Market: fanatix seeks to disrupt the US$40 billion global sports media rights market
Problem: keeping up to speed with the action from your team is complex and costly
Product: fanatix is a social platform that enables users to discover, create and share sports video".
"• 'Mobile Clips packages' are licensed on a territory-by-territory basis (usually non-exclusively) and sometimes hidden behind subscription services. This is sub-optimal for the fan
• By enabling fans to interact with each other around video content, fanatix is re-imagining the global sports mobile sector".
"By connecting sports fans from around the world and enabling them to capture and share their favourite sports moments, fanatix is disrupting the global sports 'clips' marketplace and creating a single brand that users can access from any territory in the world in order to discover and share the key moments from the sports that matter most to them.
Currently, 'clips packages' are sold on a territory-by-territory basis and sometimes hidden behind subscription services.
This is sub-optimal for the fan
By assembling existing technologies in new ways, adding some clever technology of our own and enabling fans to interact with each other around video content, fanatix is re-imagining the global sports mobile sector."
"Problem: Missed the game?
Every fan misses key sporting moments. For a variety of reasons:
- Looking after Kids?
- At work?
- No ticket?
- Not subscribed to Pay-TV?
- Not on TV?
The Perfect Solution: We all dream of the perfect solution…
- Every fight, free kick, foul and funny delivered to your smartphone
- Whatever country you're in
- Whenever you need it
Current Solution: Try and find it on social media…
The current solution is to try and find the clip on Twitter, Facebook or YouTube, but this is sub-optimal…
Often hard to find key sports videos in real-time
If you are successful, the clip may not always be there!
Solution: fanatix is an iPhone app that enables users to create and share sports video…
…so fans can quickly and easily find sports video they're looking for!"
"fanatix has established a global network that enables users to create and share their own sports video…
- Enables users to watch every goal from every major football league within minutes of each goal taking place, where the user is, whenever the user wants
- Industry 1st
- Massive global demand for video clips, denied by legal media infrastructure
- Ubiquity of smartphones and maturity of social web have created the framework to make this possible
…so fans can easily find the content they're looking for!"
"Sports Media Innovation: Currently, there is loads of great activity going on in sports media tech….
… but none of its addresses a pervasive need for all sports fans …
Short Video Clips: So many sports apps, yet none deliver short video clips from every league, wherever, whenever
Solution: fanatix has established a global network that enables users to create and share their own sports video clips…
- Enables users to watch every goal from every major football league within minutes of each goal taking place, where the user is, whenever the user wants – fans know what to share and when!
- Industry 1st
- Massive global demand for video clips
- Ubiquity of smartphones and maturity of social web have created the framework to make this possible
…so fans can quickly and easily find the content they're looking for!
Three Key Problems to Solve: Video creation, video discovery and rights licenses
Three Key Problems
1. Video Creation How to make it easy for fans to create and discuss video content around the key sports moments?
2. Video Discovery How to make it easy for fans to find the most relevant sports video on the app?
3. Rights Licenses How to be sure that our users could create and share sports content without breaking any rules?
Video Creation: We created a feature that enables fans to simply point their mobiles at their TV screens …
… and capture the moment that matters most to them, adding their own comments as they do – the Replay
Huddle: We added the ability to discuss that content with their friends and followers on fanatix network …
… we call this the Huddle
Video Discovery: We made it easy for users to discover the best content by introducing three sections…
- Trending section surfaces the most watched Replays of the day
- Latest section makes it easy to find out what's going on right now in the world of sport.
- My Teams section let's fans quickly skip to the action from their favourites.
... Trending, Latest and My Teams"
"Addressable Market: There will be 6 billion smartphones owners by 2020, 2 billion of them will be sports fans
Consumption Trends: Short-form video is the fastest growing type of content being consumed on smartphones
Content/Market Fit: Sports events produce key moments that are ideally suited to the short video format
Short video Replays can be used in conjunction with play-by-play commentary to enable fans to follow a game live when no broadcast fed can be found
2. Enhanced Live
Short video Replays can be used to enhance the fan experience whilst the follow the game in-stadia or on television, providing replays of key moments
3. Catch-Up / Review
Short video Replays can be used to catch-up on missed games or to enrich match reports
Sort video Replays can form the backbone of *all* (?) discussion and debate about key sporting incidents
fanatix Replay: fanatix has built a real-time sports video new network – powered by fans
- Enables users to access new clips from every major football league within minutes of each incident taking place, where the user is, whenever the user wants
- Fans know what to share and when!
- UGC model enables global scale & zero production costs
- Massive demand for real-time sports video news
- Ubiquity of smartphones, maturity of social web and fast-growth of short-form video consumption have created the framework to make this possible
Pages 7-9 are very similar to pages 5, 6 and 8 of the sixth presentation.
"Background: Will Muirhead has been building technology products for the sports media sector since 1999
Sports fans must have access to live games: This can be achieved through attendance, broadcast, streaming or simple textual minute-by-minute coverage.
2. Enhanced Live
Sports fans aren't satisfied with live: Sports fans need to heighten the excitement of live with betting, fantasy games or the ability to delve into stats.
Sports fans need Catch-Up: Fans need to relive action or catch-up with missed games, usually through broadcast highlights or written reports.
Sports fans need debate: Sports fans need to debate the key talking points 24/7/365, in the pub, on the phone, online and on social"
"Problem: Sports fans have to go to a variety of different places in order to find sports video clips on their mobile
- Different competitions (UCL, EPL, Serie A, NFL, etc...) are available through different providers at different times
- Some of these providers bundle these clips into subscription packages for wider product offerings, making them even less accessible
- Some games are not available at all
- And every territory has a different set of players, making it a terrible experience for the fan…
- The mobile video sports experience has been driven by the legacy media licensing infrastructure
- It is not fit for the mobile/social generation
Decentralised Solution: fanatix has built a real-time sports video news network – a news marketplace powered by fans
'Real-Time Sports Video News Live Cycle'
Goal crossed the line!
fanatix shows latest game videos for easy review of key, in-match moments
Beautiful game at best
Fan replays the controversial moments of the match and reviews the key goals from the other matches in the league – debating them with other fans on the network
- UGC model enables global scale & zero production costs
- Fans know what to share and when!
- Enables users to access news clips from every major league within minutes of each incident taking place, wherever the user is, whenever the user wants".
"Entrance strategy: fanatix makes it easy for users to share Replays across the social web
- Upgrading 1st generation platform users
- fanatix currently has a network of 5 – 10 m sports fans that use its blogs on a monthly basis – fanatix is already immersing this audience with fanatix Replays
- Additionally, fanatix has enabled the embedding of 'Replays' in articles on digital publisher websites, building brand awareness and promoting usage by key vloggers. These can be leveraged to generate super-normal revenue – i.e post-roll in-feed video ads
- We are not leaving the growth of this product to chance. We are making it happen…"
Were the clips accompanied by a sufficient acknowledgement?
Was the use fair dealing?
"The use made by B.S.B. in its Sportsdesk programmes of excerpts from the B.B.C.'s live broadcasts took place necessarily after the broadcasts had been transmitted, but took place before the B.B.C.'s or the I.T.V.'s World Cup review programmes had taken place. It was suggested by Mr. Rayner James that thereby the audience appeal of the review programmes would have been reduced. I regard this suggestion as fanciful. If anything, the B.S.B. news reports, with their use of the excerpts, would have been likely in my opinion to have whetted the appetite of the football enthusiast. In any event the reporting of current events must be done promptly. Football matches, even important ones, very quickly cease to be current events. To have required B.S.B. to postpone its use of the material until after the material had been used in the B.B.C.'s or in I.T.V.'s World Cup review programmes would in practice have barred the use of the material as an adjunct to the reporting of the World Cup matches as current events. If B.S.B. was to use the material at all, it had to be used promptly."
Assessment: versions 8.3.2 and 8.4 of the App
Was the use for the purpose of reporting current events?
Were the clips accompanied by a sufficient acknowledgment?
Was the use fair dealing?
Assessment of the fair dealing defence: versions 8.5 to 8.5.4
Is the use for the purpose of reporting current events?
Are the clips accompanied by a sufficient acknowledgment?
Is the use fair dealing?
Mere conduit or hosting
The Website and the Social Media Accounts
Summary of principal conclusions
i) The reproduction and communication to the public of clips from the Claimants' broadcasts and films via versions of the App up to version 8.3 was not protected by the defence of fair dealing for the purpose of reporting currents. The use was not for the purpose of reporting currents events; and even if it was, it did not amount to fair dealing. Accordingly, the Defendants infringed the Claimants' copyrights in those works.
ii) In some cases the use of the clips would have infringed in any event because of the lack of sufficient acknowledgement.
iii) The changes made to the App in subsequent versions do not alter the availability of the defence of fair dealing for the purpose of reporting current events.
iv) The reproduction and communication to the public of some of the clips via the Website and Social Media Accounts also infringed the Claimants' copyrights.
v) The Defendants' infringements were not flagrant.