Renewed protection for broadcasters and rights holders of live sports content

Filming sports matches from a TV on a device and uploading the content to a website for others to access can infringe a broadcaster’s or licence holder’s copyright; a recent decision of the High Court in England & Wales has confirmed. This will have significant implications for, and increase confidence to, and protection for, sports rights holders (including broadcasters and event organisers) who licence and pay substantial amounts to broadcast live sports content to audiences around the world.

Broadcasters spend vast sums of money (and invest time, labour and technology) to film or produce live events (by providing ancillary commentary, replays and multiple camera angles). They recoup some of this outlay by charging viewers subscription fees to watch the game. Consequently, it is easy to agree with the court that any website or online application that permitted uploads of near-live footage of such events so that they can be viewed for free by other users of the platform should be prevented from doing so as it would threaten the commercial rights of, and the investments made by, event organisers and broadcasters.

However, it is not always this clear cut. In this case, the website ‘Fanatix’ created an application that allowed users to upload short clips (of up to 8 seconds in length) that they had filmed of live broadcasted sports footage, and allow other users of the website to search for clips of their team or a specific event or match (based on the tags or keywords placed on the clip by the uploading user).

The design for the Fanatix product centred around exploiting a ‘‘fair dealing’’ defence to copyright infringement. This exists where the purpose of showing the content is merely to ‘‘report current events’’. Indeed, this is why TV channels can show match highlights during news bulletins and such a practice is recognised as being legitimate and, as such, has been cemented in the Sports News Access Code of Practice. The market for short-video sharing of critical match content (such as wickets, tries, goals, etc.) through social media is vast. The way content is consumed (on demand and in public using 4G and wi-fi networks) drives the market for near-live short-videos that give fans the best of the action at the click of a button. Fanatix consequently sought to exploit this (and indeed the numbers of website users and clip viewers led to significant advertising revenue).

The court heard that Fanatix considered it could get away with such an offering because it believed that its service and practices constituted ‘‘fair dealing’’ for the purpose of ‘‘reporting current events’’ (as explained above, a defence used by current TV news broadcasters), illustrated by the facts and opinions that:

  • 8 second clips did not amount to a ‘‘substantial part’’ of the rights holders’ copyright, and that the vast majority of the match coverage was not exploited;
  • fair and proper acknowledgement was (in most cases) given to the broadcaster and rights holder (i.e. Sky) in each clip (as filming from a TV would of course include any logos and trademarks that featured on the broadcast);
  • the app restricted the number of times users could view and upload clips and the footage would only be transmitted for 24 hours (thereby allegedly limiting the extent of the exploitation); and
  • the clips merely ‘informed’ the public of the day’s events and therefore the website/app functioned merely as a neutral data processing service (similar, in that sense, to a search engine).

The legal challenge in this case was brought by the England & Wales cricket board (relating to clips of cricket matches uploaded by users) and Sky UK (who broadcast the matches) who successfully argued against all of the above. Notably, it was decided that:

  • given the significant market that exists for critical match content, the fact that the clips were only 8 seconds in length did not matter, as it was this critical content that was uploaded (rather than 8 seconds waiting for a golfer to tee off or for a kicker preparing to take a conversion);
  • the quality of technology (such as smartphone cameras) allowed users to upload sports content that did not substantially differ from the quality of the broadcast itself;
  • Fanatix did not do enough to ensure that each clip gave fair and proper acknowledgement to the broadcaster and rights holder;
  • the usage restrictions merely limited the extent of the use, rather than the basic purpose of the use (which was entirely commercial as evidenced by allowing advertisers to hijack content before viewers could access the clip); and
  • by providing terms of website use, giving general information to users and receiving advertising revenue for the product, Fanatix went substantially further than a neutral data processor or search engine.

Whilst this may offer some room to manoeuvre for those who wish to upload and host content, the above points significantly erode any potential market for that content (as clips would need to be of largely insignificant aspects of the match, of poor quality and covered in acknowledgements of copyright ownership and viewing access would have to be heavily restricted to avoid infringing copyright).

It is therefore clear that distributing user-filmed, on-demand and near-live sports content (from a broadcast as opposed to within the stadium or from the sidelines), for a purpose that is not simply to inform the public of the day’s events (as is done with a news channel) will infringe rights holders’ copyright. This will give renewed protection to rights holders who invest significant time, labour, technology and money into bringing live sports content into pubs and living rooms around the world. Consequently, this will protect the revenue streams of event organisers who licence the broadcasting rights for their events (had judgement in this case gone in favour of Fanatix, the value of those contracts could have significantly fallen).

For individuals who film such clips from broadcasts and upload them to online content sharing platforms (such as YouTube), this case confirms the position that such clips will likely infringe copyright resulting in the removal of offending clips and the suspension of infringing accounts.

It is, however, worth pointing out that English law does not recognise the existence of proprietary rights to a sports event per se. In this jurisdiction, the rights that arise in events, spectacles and performances arise under copyright and its related rights (such as performers’ rights) but English copyright law does not recognise a sporting spectacle as a dramatic work in which copyright may arise. This is the reason why certain websites (such as Vine or YouTube) are able to contain countless short-clips of sporting events filmed by spectators at the event. Otherwise, the main way for the event organisers to seek to prevent the unofficial collection and distribution of data and footage is to control access to the event and impose a condition in the ticket terms and conditions that states that, other than for private and domestic use, any persons attending the event must not record or transmit over any media (including internet, radio and television), any sound, image or recording the event. The ticket terms and conditions form a binding contract between the event organiser and each spectator and the event organiser could therefore rely on the remedies available for breach of contract should the attendee violate any such condition.

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