In this post, Balu Nair our Spicy IP Fellowship applicant analyses the recent decision in England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor [2016] EWHC 575 (Ch) and discusses what the Indian position might be in a similar scenario.
The recent decision by the England and Wales High Court (Chancery) Division, as reported in IPKat a few days ago, held that short video clips of 8 seconds’ duration, such as the ones created on ‘fanatix’ app, are violative of the rights of the copyright holder and broadcaster. The finding was on a claim filed by England and Wales Cricket Board (“ECB”) and broadcaster Sky. The decision holds significance for India as the fair use provision in the UK is analogous to the ones in India. I am going to stick my neck out here and say that a challenge similar to the one in this case would meet with the same outcome in India. I say this on the basis of a series of decisions, which have toed the same line vis- a- vis infringement of broadcast right and copyright in cricket matches.
The UK Decision
The ECB, who is the copyright holder for almost all matches of the English cricket team, broadcast through television, challenged the action of a website called fanatix.com (“Defendants”). The website, among other things, allowed its users to download its app and make short looping video clips of up to 8 seconds from the footage of matches broadcast by ECB through Sky, using its screen capture technology. Users could also add a short comment to its clips. The main argument (relevant for us) of the Defendants was that its action was well within the fair dealing protection accorded by S.30 (2) of the Copyrights, Designs and Patents Act (“CDPA”). The provision states that any use of copyrighted material for the “purpose of reporting current events” falls within the fair dealing protection. The judge made his decision based on the analysis of two issues: 1) what amounted to substantial part of the work? (according to S.16 of CDPA, a case of prima facie infringement is made out when the infringing copy is in relation to the work as a whole or substantial part of it) and 2) is the purpose of these clips to report current events as given under S.30 (2)?
As to the first question, it was held that the test should be one of quality rather than quantity. The app enabled making of clips, which mostly showed the highlights of the matches- fall of wickets, boundaries, centuries scored etc. Although quantitatively they might only form a minuscule portion of the entire match, qualitatively they formed the most important part of the matches and exploited the investment made by the claimant. Similarly, the second question was also adjudicated purposively by recording a finding that it was a case of users adding comments to the clips rather than clips added to a report of the match for illustration. Thus, in judge’s opinion, the primary purpose of the clips was to entertain the subscribers than report the outcome of the match. It may also be noted that the judge did in fact consider the ways in which the nature of news had changed and the impact social media has had on reporting of news.
‘Reporting’ of sports and fair dealing in India
This blog has covered in detail (see, here, here and here) the Indian decisions on fair dealing in the reporting of cricket matches. The most relevant ones for the purpose of our analysis are the decision given by the division bench in ESPN Star Sports v. Global Broadcast (“ESPN”) and the decision in NDTV v. ICC (cases like Star India v Piyush Aggarwal, Akuate Internet Services v Star India are also of interest though I limit myself to the analysis of above two cases).
In the first case, the broadcaster, ESPN, sought an ad interim injunction against a number of news broadcasters from broadcasting clips in their news feed from the India- Australia cricket series. It is interesting that the relief was sought only against clips in excess of 30 seconds per bulletin and exceeding 2 minutes per day. Furthermore, ESPN wanted to prevent the Defendants from advertising immediately before or after the airing of these clips. Earlier, a single judge did not grant the relief ESPN had sought for on the grounds that the copyright holder, Cricket Australia (CA) was not impleaded in the suit and for non- submission of the license agreement in full.
The facts of NDTV v ICC are more or less similar and related to the extent to which news channels could use the footage of the broadcasters. Since both the decisions took similar positions on the question of fair dealing, they are discussed together below.
Reporting of current events
Both the decisions placed reliance on Media Works NZ Limited v. Sky Network Television Limited (a decision from New Zealand) to determine the extent to which footage can be used so as to not breach the contours of fair dealing.
As to what amounts to “reporting of current events” (which is the requirement for fair dealing in S.39 (b) and 52 (b)) the Court said that two objective tests have to be applied. First, the nature of coverage and whether it is result oriented. Secondly, it has to be seen whether it involves analysis or review of the sporting event. Thus, the Court was of the opinion that “hard news” in the pre-existing news format was saved. Those programmes, which were full-fledged analysis of the sporting event along with expert opinions and advertisements, would fall foul of the rights of the copyright holder.
Thus, the purpose of the test was to determine whether the defendants’ programmes, in the guise of reporting news, were in fact piggy backing on the investments made by the right holders and making a profit using their clips. Those programmes which were dressed up as news but involved extensive analysis with their own sponsors and advertisements were in direct competition with the rights of broadcasters and copyrights holders and did not satisfy the test of S.39.
Aggregate length and fair dealing
Both the decisions also dealt with the question of the length of the footage acceptable for the purpose of fair use. In ESPN, the defendants contended that in the Prasar Bharati case, use of clips up to 7 minutes a day was considered fair use. But, the Court noted that this was an informal arrangement arrived at through consensus in the circumstances of the case and it was not a universal rule. Similarly, in NDTV, defendants referred to the guidelines laid down by the News Broadcasters Association (“NBA”) regarding the amount of footage, which can be used per day. The claimants’ opposed it on the basis of lack of legal enforceability of these guidelines and the existence of ICC rules in this regard.
The court answered this issue by again relying on the Media Works decision. It was observed in ESPN that no uniform rule can be laid down and the length of footages will entirely depend on the kind of sporting event being reported. Thus, an event like Olympics, which needs to be covered in detail and involves a number of competitions, cannot be equated with any other sporting event. Here again, the Court used the touchstone of fair dealing to determine the issue at hand. In Court’s words, “such events could not be shown to an extent where fair comment transpires itself into a commercially profitable programme showing several minutes of footage of the appellant or its report in a programme centered around a discussion.”
It is also noteworthy that use of clips running into several minutes makes out a strong prima facie case against the defendants, as was evident from the Court’s acceptance of the argument of ‘aggregate length’ put forth by the broadcasters. Thus, if the clips used in different programmes through the day aggregated to several minutes, a strong presumption against the defendants would be arrived at.
Application of the case to ‘fanatix’ app scenario
The description of fanatix app reads, “Watch 8 second looping video snippets of your favourite sporting moments”. Thus, one need not split hairs to see that the app is meant for entertainment and is far from qualifying as “reporting of current events” as interpreted by the Indian courts. Even keeping in mind the way social media has altered the idea of “reporting”, it is to be understood that the primary purpose of the app is to entertain rather than report. As would be evident to anyone who has used similar apps or seen clips of the nature generated by fanatix app, they generally pick out specific moments from the matches, which the viewers would want to catch up later on or want to re-watch for its entertainment quotient. It thus fails to cross the first hurdle itself, that of amounting to “reporting a current event”. Another possible argument in favour of the app is the short duration of the clip. But here again, if multiple users were to generate clips from different parts of the matches, it would aggregate into an unreasonably large footage.
Thus, it has to be said that a similar challenge would meet with an outcome akin to the one cited above and the test will be one of quality rather than quantity.
Image from here.
