England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor

Copyright in broadcasts and films protects the broadcaster’s or producer’s investment. Whether a part is substantial is assessed quantitatively and qualitatively, having regard to the extent to which the use exploits that investment.

The fair-dealing exception for reporting current events is interpreted broadly and objectively, including in the digital environment and in appropriate cases through citizen journalism. Commerciality alone is not decisive. The use must nevertheless be fair, sufficiently acknowledged, justified by its informatory purpose, and proportionate. A service providing on-demand, near-live sports highlights for consumption and sharing may fall outside the exception where it competes with ordinary or potential exploitation of the copyright works.

The claim concerned alleged infringement of copyrights in television broadcasts and films of cricket matches. The defendants operated a mobile application, website and social-media accounts through which users and the defendants’ personnel uploaded short sports clips.

The defendants relied principally on fair dealing for the purpose of reporting current events and, in relation to some user-posted material, on the mere-conduit and hosting protections in the Information Society Directive and the Electronic Commerce Regulations. They also sought a declaration concerning later versions of the application.

The central issues were whether the clips reproduced substantial parts, whether the use was for reporting current events and fair dealing, whether acknowledgements were sufficient, and whether the defendants could rely on hosting or mere-conduit protection.

1. Substantial part. Copyright in broadcasts and films is an entrepreneurial right protecting investment. The correct assessment is both quantitative and qualitative. In sporting broadcasts, short clips showing highlights and action replays may substantially exploit the investment in producing the broadcast or film. Each relevant clip was therefore a substantial part of the relevant work.
2. Reporting current events. The expression is to be construed broadly, objectively and in a manner responsive to technological and media developments. Citizen journalism may qualify. But the application’s predominant purpose was to enable users to consume and share intrinsically valuable sports highlights and debate them, rather than to inform an audience by reporting the events. The use therefore was not for the purpose of reporting current events.
3. Fair dealing. Assuming otherwise, the use was still unfair. The application competed with actual and potential exploitation by the claimants and licensees, supplied potentially extensive near-live highlights, and took material whose amount and importance were not justified by any informatory purpose. The later commentary, attribution, expiry controls and viewing algorithm did not alter the essential purpose or make the overall use proportionate.
4. Acknowledgement. A broadcaster’s logo may constitute sufficient acknowledgement. Whether it did so for particular clips depended on the evidence and viewing context. Some clips lacked sufficient acknowledgement in any event.
5. Three-step test. The court treated Article 5(5) of the Information Society Directive as requiring consideration of substantially the same factors as fair dealing. The assessment included conflict with normal exploitation and whether legitimate interests were unreasonably prejudiced, requiring proportionality and a balance with freedom of expression.
6. Intermediary protections. Mere-conduit protection did not apply because the service involved storage as well as transmission. The judge provisionally considered that hosting protection might apply to unreviewed user-posted clips, but not editorially reviewed clips, while declining to decide the point finally. Such protection would not prevent an injunction.
7. Disposition. The defendants infringed copyright through the relevant application versions, website and social-media accounts. The infringements were not flagrant. The counterclaim concerning later versions did not succeed.