A judgment handed down last month by Mr Justice Arnold in the High Court has clarified the circumstances in which the defence of fair dealing for the purpose of reporting current events can be successfully argued.  Specifically, this case concerned short video excerpts taken from earlier broadcasted material.

In this instance, the claim was brought jointly by the England and Wales Cricket Board and Sky UK Limited (the “Claimants”) against Tixdaq Limited and Fanatix Limited, creators of a smartphone app that allowed users to upload short video clips to the internet (the “Defendants).

The Claimants alleged that by allowing users to upload clips of up to eight seconds showing extracts of exclusive cricket match broadcasts, the Defendants were unlawfully using substantial parts of copyrighted work without permission or licence. Therefore an infringement had taken place in respect of the copyrighted works.

The Defendants argued that the uses, at eight seconds, were not sufficient to constitute a “substantial part” of the work and, in any event, fell within the provisions of fair dealing for the purpose of reporting current events.

The Defendants’ arguments were not successful.  The Judge held that the video clips were sufficient to constitute a substantial part of the broadcast and that although the fair dealing provisions were to be interpreted broadly, the content of the clips together with the primary purpose of the app meant that the use in this case did not amount to fair dealing.

Unauthorised copying of the whole, or any substantial part, of a broadcast will be considered an infringement of the rights of the copyright owner, and capable of forming the basis of a civil claim for damages.

In determining that the 8 second clips did constitute a substantial part of the broadcasts in question, the Court revisited a principle set down in 2008 in a case concerning clips of Premiership football matches whereby both quality and quantity were both identified as factors to consider.  In the case at hand it was found that although in quantitative terms, 8 seconds is not a large proportion of a broadcast, qualitatively, the content of the clips could be of such importance that despite their brevity, they were sufficient to be considered substantial.

Since the clips consisted of a number of highlights from the day’s play (i.e. the most valuable parts of the broadcast), the difference between 8 seconds and the 8 best seconds of a days’ cricket was the crucial decider.

Once the usages had been found to constitute a substantial part of the copyrighted material, the Court turned to the matter of whether or not the defence of fair dealing for the purpose of reporting current events could apply.

The fair dealing defence provides that use of a copyrighted work (with the exception of photographs) will not be considered to be an infringement where such use is for the purpose of reporting current news events, and it is accompanied by a sufficient acknowledgment.

In this instance, although the Defendants argued that the purpose of the video uploading functionality was to facilitate reporting of current events in a sporting context, the Judge found that this was not the main purpose of the app.  Instead, it was held that the clips were being used primarily for their own commercial value, not for the special purpose of reporting current events and therefore that an infringement had taken place.

The rules and exceptions concerning copyright are often difficult to comply with as much of the law is based on judgment.  The case at hand, although fact specific, is a good reminder of what is to be considered a “substantial part” for the purposes of copyright.   Furthermore, it confirms that although the defence of fair dealing applies in respect of both words and video footage, and that the term “reporting” is to be broadly interpreted, if the primary purpose for the use is found to be anything other than “reporting current events”, the defence will fail.