On 18 March 2016, Mr Justice Arnold issued a judgement in England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor which concerned whether there could be copyright infringement for showing a 8 second clip.
The Claimant, England and Wales Cricket Board Ltd ("Cricket Board"), owns the copyright in television broadcasts of most cricket matches played by the England men's and women's cricket teams in England and Wales.
The Defendants operate the website www.fanatix.com and various mobile applications.
Tixdaq uploaded a number of 8 second clips of cricket matches onto its website, app, Facebook page and Twitter feed. The users of the website/apps added comments to the clips and then shared them. The Cricket Board claimed that Tixdaq's use of the clips had infringed their copyright. Tixdaq denied infringement and relied on the defence of fair dealing for the purposes of reporting current events.
Section 30 (2) of the Copyright Design and Patents Act states that:-
"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."
Arnold J held that Tixdaq was not protected by the defence of fair dealing for the purpose of reporting current events. The use was not for the purpose of reporting currents events. The clips used were not used in order to inform the audience about current events but were used because of their interest and value. The Judge held that even if the use was considered fair dealing the clips did not provide sufficient acknowledgement to the claimants.
A Substantial Part
Section 16(3) of the Copyright Design and Patents Act states that in order to infringe copyright the defendant must have copied the work either directly or indirectly as a whole or any substantial part of it.
The clips broadcast by the defendant were only 8 seconds long, whereas the recording of the entire cricket match lasted for hours. The Judge held that the clips were highlights of the matches and action replays. Therefore, the reproduction of the work was a substantial part because they contained the most important parts of the matches. The Judge referred to Infopaq where the interpretation of 'substantial' in the case of a broadcast was considered to be the same test as that for literary and artistic works. The reproduction in question is the part that contains "elements that reflect their rationale for protection, ie the intellectual creation of the author".
Tixdaq may appeal the decision.
The decision is good news for copyright owners and follows a number of other recent cases involving the use of copyright material when sharing 'gifs' and 'vines' on social media.in: Case Law, Copyright, News