Bowled Away - 8-Second Cricket Clips Infringe Copyright

As a major consumer of North American sports, this writer is very reliant on the provision of highlights for this favorite sports, enabling him to keep on track with the latest developments and just to indulge in great sporting feats. Even highlights, however, are big business, being an important draw for new (and old) viewers to subscribe to TV or on-demand services providing full games in many sports, or just servicing as a vehicle to sell more merchandise through official channels. The emergence of social media has changed this dynamic, allowing for the provision of live highlights or video clips, showcasing sports events as they happen, with or without the blessing of the sporting organizations. With this in mind, would short clips of sports activities constitute copyright infringement or would app creators be allowed to let their users share these moments as they please?

The case of England And Wales Cricket Board Ltd v Tixdaq Ltd dealt with an app called Fanatix, which, among providing sports news, allowed for its users to record clips (up to 8 seconds long) using their smartphones or tablets, and sharing them with like-minded sports fans who might not be able to follow the action live (encapsulating mostly the 'highlights' of an event). The clips could be viewed through the app or on Fanatix's social media pages. The England and Wales Cricket Board own the rights to broadcast all video on cricket matches played in England and Wales, and upon noticing clips of cricket games broadcast via the Fanatix app, took its owner Tixdaq to court for copyright infringement.

Tixdaq argued that their use of the works was within the remit of fair dealing, specifically for the purposes of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988. As such, the substantiality of the copying needed to be assessed, including for the purposes of infringement. Justice Arnold considered both parties' submissions, and saw that substantiality is to be assessed considering "...elements which reflect the rationale for protecting broadcasts and first fixations, that is to say, the investment made by the broadcaster or producer". One should not confuse this with the requirement of originality in relation to other types of works (as the case concerned broadcasts, not e.g. literary works). He summarized the correct test as the consideration of "...the degree of reproduction both quantitatively and qualitatively, having regard to the extent to which the reproduction exploits the investment made by the broadcaster or producer".

In his early consideration of fair dealing, Justice Arnold noted that any use made for the purposes of reporting current events would have to take into account "...whether the extent of the use is justified by the informatory purpose".

Citizen journalism: the backbone of an informed society

Justice Arnold then moved onto the interpretation of the phrase 'for the purpose of reporting current events'. In his judgment, the phrase should be interpreted objectively, yet liberally, so as to allow for the effective facilitation of free speech. The use, even in the remit of free speech and fair dealing, would still have to be assessed to the extent the material is used is justified by the informatory purpose.

In determining whether the 8-second clips were a substantial amount, Justice Arnold saw that they indeed were, as every clip contained highlights and points of interest, and therefore value. Because of this value the copying would be substantial, even though in a quantitative sense it would not necessarily be.

Finally, Justice Arnold addressed whether the use would fall under fair dealing. He briefly accepted that contemporaneous sporting events could be classed as current events for the purposes of section 30(2), however excluding any possible footage of interviews and punditry (within limits). This can also include 'citizen journalism', under which the use within the app does somewhat fall. Justice Arnold deemed that the use of the material was not reporting of current events under the section, as the video clips posted "...were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value". The objective of the app was also purely commercial, and designed to utilize the clips to their fullest in the collection of revenues, rather than as a medium for sincere journalism. The copying of the works therefore infringed the copyright owned by ECB.

The case is very interesting, especially in the context of new age media and 'citizen journalism'. Even though the app's use of the works was clearly nothing but an attempt to benefit from the blatant sharing of clips of cricket games, subsequent changes to the app forced users to 'report' more on the action, clearly being driven towards the use under fair dealing. One can think of other social media outlets, such as Twitter or Vine, where extensive commentary might not be possible, as potential candidates that might fall foul of section 30(2) if taken to court. Nevertheless, the case was a curious one, and a lesson for all aspiring app makers to heed copyright when making their apps.

Source: Technollama

Copyright and Social Media - Viacom takes on YouTube

As people use various social media outlets more and more, their relation to copyright and possible issues they present become ever more prevalent. Could social media websites such as YouTube and Facebook be infringing copyright through their users' submitted content? With YouTube receiving over 100 hours of video every minute, some of which clearly being copyrighted material, it was only a matter of time before the courts had to address this issue. Media giant Viacom took it upon themselves to bring this matter forth, suing the video hosting service for copyright infringement.

The lengthy legal battle began back in 2010, when the matter was taken to the New York District Court in the case of Viacom v YouTube. The defendant argued, in their application for summary judgment, that they were protected from being held liable under the safe harbor provisions in the Digital Millennium Copyright Act. Should YouTube have lacked actual knowledge of any infringing material or acts being conducted in their service; would not be aware of any facts or circumstances making such activity apparent; and have acted promptly on any knowledge of such acts or materials being published by removing them, they would be exempt from liability. In Viacom's argument, for partial summary judgment, YouTube had actual knowledge and were aware of facts and circumstances which made such acts apparent, but did not act upon that knowledge to stop it; they received financial benefit from this infringing activity and could control it; and did not result solely from providing storage and direction of a user in their facilitation of that content as specified in the section. In the court's conclusion YouTube did not infringe copyright and were safe under the provisions as a service provider. Even though the site did contain infringing material, YouTube's prompt removal of that content when notified of it prevented it from being liable. Should they have not acted upon the knowledge of the material, they could have been liable.

In taking things further, Viacom appealed, and their case was heard in late 2012 in the New York Court of Appeals. In the decision the court saw that the judge at first instance had not considered the issues of YouTube's awareness of the material or had actual knowledge of any specific infringements; whether they had 'willfully blinded' themselves, in other words ignored, the infringements; whether they had the right and ability to control that activity; and whether the content was syndicated, in other words controlled, by a third party (the user), only using the service as a means of storage and direction. In that light the case was sent back to the District Court for final summary judgment.

A plethora of possibilities

In its final decision the District Court saw that YouTube was indeed safe under the DMCA safe harbor provisions. The service had not willfully blinded itself to the infringing content, which was found through evidence in the form of internal emails between executives. Even though the exchanges did identify specific content that was infringing and discussed their removal, in themselves they were not enough to showcase any level of ignorance through choice. The site also did not have the right and ability to control users activities, as this would have meant an ability to do something beyond the mere typical control of a website. Finally their potential financial gain was not seen as an issue, as they did not encourage the uploading of infringing material, nor did they have active control over the content which was uploaded (pre-screening the videos etc.) In its judgment the court threw out Viacom's case and found in favor of the defendant.

So after years of litigation, what can we say about the relationship between copyright and social media? The relationship does still remain a complex one, and the nuances of each service provide different aspects that need to be assessed. What can be taken away from the Viacom litigation is the potential issue of "willful blindness", as websites cannot simply abuse the DMCA provision in the guise of not knowing that infringing acts are occurring. In short, ignorance is no defense if it's through choice. Websites don't have to take an active role necessarily in screening everything that is posted, but do have to act once informed of any misuses. As social media grows and evolves, it will provide newer challenges and potential issues going forward, but as it stands, the Viacom case gives us a great illustration of how social media and copyright interact.