Can 8 seconds of any sporting event constitute a substantial part? If it involves Usain Bolt then the answer is a clear “yes”. But what if it is a soccer game, a rugby match or even test cricket? The UK High Court recently tackled this issue and the decision may have wide reaching consequences for both broadcasters and technology companies.
The England & Wales Cricket Board (“EWCB”) and Sky brought an action against a technology company, Tixdaq, for copyright infringement. Tixdaq provided a website and app that allowed users to record, upload and share 8 second clips of sporting events.
The EWCB claimed this business model infringed their copyright in the broadcast. However Tixdaq argued that the posts were covered by an exemption for the reporting of current events and that it could rely on the mere conduit defence.
The Court first considered whether 8 seconds could constitute a “substantial part” of a sporting event – which is a key element of copyright infringement. The Court focused on the qualitative nature of the content rather than the quantitative. The majority of clips uploaded contained action replays of key moments in games and so significantly undermined the investment made by the EWCB and Sky in producing this content.
The Court was of the view that Tixdaq could not rely on the relevant exemption as the primary purpose of the app was the sharing of content, not commentary. The argument that it was a mere conduit was also rejected.
This decision will be welcomed by all copyright owners, especially sports broadcasters and the promoters of events such as concerts. As sports streaming services and content sharing platforms grow in popularity, this decision provides greater certainty of protection around the reproduction of broadcasts. It also provides important guidance to any technology companies operating in this space. While businesses of this kind are not automatically prohibited it is vital that they be structured in such a way as not to infringe copyright – even if it is only for 8 seconds at a time.
Contributed by Stephen Tallon
