Out-Law Analysis 7 min. read
21 Aug 2014, 11:08 am
Last week the Premier League warned that it intends to crack down on the unauthorised uploading of clips from televised football matches. It follows a summer during which large numbers of short clips of action from the World Cup in Brazil were shared on social media platforms such as Twitter.
Broadcast footage is protected by copyright, but a new exception to copyright due to come into force in October will introduce a general qualified right to quote copyrighted works. It may be possible for individuals and organisations, such as betting companies for example, to rely on this new exception to justify the posting of Premier League clips online provided there is sufficient acknowledgment. Ultimately only a court could make it clear exactly what the new law allows.
The Premier League's warning highlights the pressure that commercial rights agreements, which clubs and rights holders rely on for investment, can come under from the behaviour of audiences armed with increasingly sophisticated technology.
What is the issue and what did the Premier League say?
Technology has changed the way consumers share and interact with content. During the recent football World Cup in Brazil, it was common to find clips of goals or other points of action from the games posted on social media within seconds of that action being broadcast.
The rise of services such as Vine, which enables users to upload short six-second long video clips to the internet, has enabled consumers to access content more quickly and easily than ever before.
Prior to the start of the Premier League season last weekend the Premier League warned fans against uploading video clips of its matches. A spokesperson told the BBC that the activity was a breach of copyright which it intends to clamp down on.
"You can understand that fans see something, they can capture it, they can share it, but ultimately it is against the law," said Dan Johnson, director of communications at the Premier League, according to the BBC's report. "It's a breach of copyright and we would discourage fans from doing it, we're developing technologies like gif crawlers, Vine crawlers, working with Twitter to look to curtail this kind of activity... I know it sounds as if we're killjoys but we have to protect our intellectual property."
The Premier League's current UK broadcast rights deal with BT and Sky is worth approximately £1 billion a season. News International, publisher of the Sun and Times newspapers, also paid a reported £20 million for the rights to show highlights from Premier League matches online. Protecting the value of those rights is pivotal to enhancing the value of the Premier League brand and the associated commercial rights it can generate.
However, how copyright rules apply to sports broadcast content posted online is unclear. There is no definitive ruling that provides a precedent on the issue, although some of the main considerations any court would have to make if asked to rule in any case on the subject can be identified.
Are sports broadcasts protected by copyright?
A 2011 ruling by the Court of Justice of the EU (CJEU) determined that live sporting events do not of themselves qualify for copyright protection. However, broadcasts of those events and film, sound recordings, graphics, music and other features included within such a broadcast can be said to be copyrightable.
The judgment was made during a dispute over whether the use of foreign satellite decoders by pub landlords in the UK to broadcast Premier League matches being televised overseas was an act of copyright infringement.
Therefore it is possible that the Premier League could stop clips of the action taken from broadcasts being posted online on the basis that they infringe copyright.
Does it matter how long the clips are?
Communicating copyrighted content to the public is an act generally restricted by copyright. The Copyright, Design and Patents Act states that copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public without rights holders' permission via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".
However, minor infringements of copyright are allowed to pass off without punishment under UK copyright laws. Copyright can only be infringed if the unauthorised use involves the whole or a 'substantial part' of the copyright work.
However, small parts of a copyright work can be said to constitute a substantial part – it is the quality and not the quantity of the copied content that determines whether or not it represents a substantial part of a copyrighted work.
In a copyright dispute concerning published text as opposed to video content, the CJEU ruled in 2009 that extracts as short as 11 words could attract the protection of copyright. The case involved Danish clippings service Infopaq which reproduced content created by newspapers.
The case highlights that reproducing small parts of copyrighted works can be an act of copyright infringement. Whether that is the case depends on the level of skill and effort invested in producing the relevant part of the work rather than whether the relevant part constitutes a substantial portion of the whole work.
The more significant the piece of broadcast footage that is uploaded, such as a goal or red card incident, the more likely it is to be deemed to be a 'substantial part' of the copyrighted work.
Are there any defences against infringement action?
Even if it can be shown that short clips of goals or other important moments in football matches represent a 'substantial part' of the whole copyrighted work, there may still be an exception to copyright applying that permits the posting of that material.
In particular, UK copyright rules contain an exception which allows copyright material to be used without rights holders' permission for the purpose of reporting current events. This right is qualified, however, by an overarching principle that the use of the material in news reports is 'fair dealing'.
In practice this means those using the material are generally restricted to using an amount that is reasonable and appropriate, which will vary from case to case.
However, where short video clips of games could be said to qualify for copyright protection, it is unclear whether non-news outlets that post those clips could reasonably claim that the purpose of them doing so is to report current events.
However, a new exception to copyright due to come into force in October could provide more of a defence against any infringement claims from rights holders. A more general qualified right to quote copyrighted works is being introduced and will also be subject to the overarching 'fair dealing' principle.
It may be possible for individuals and non-media organisations, such as betting companies for example, to rely on this new exception to justify the posting of the Premier League clips online provided there is sufficient acknowledgment, although ultimately only a court could make this clear.
Do any previous cases provide guidance on this issue?
No court in the UK has yet determined how copyright laws apply to the unauthorised posting of video clips from sports events onto the internet. However, a ruling from the early 1990s in a dispute between the BBC and British Satellite Broadcasting (BSB), which later merged with Sky Television to form BSkyB, may provide some clues as to how such a case may be resolved if it was pursued.
In that case the BBC accused BSB of infringing its copyrights by using footage it broadcast from the football World Cup in Italy within its news reports, specifically goals or "a near miss". The BBC, which owned the copyright in its broadcasts from the World Cup, claimed that BSB's use the clips, which ranged in length from 14 to 37 seconds, was infringing.
In its ruling, though, the court agreed that the reporting exception applied to sporting events as well as other current affairs and said BSB's use of the BBC's copyright work was fair competition and within the bounds of the 'fair dealing' limitation.
Following the dispute, changes were made to UK broadcasting laws to make it clear that broadcasters could broadcast copyrighted programmes shown by other broadcasters for the purpose of reporting current events, subject to an overarching limitation that the footage they show represents 'fair dealing' of the copyrighted work.
Commercial considerations for rights holders
Sports rights holders need to be aware that there is a difference in the law which governs fans posting clips of TV footage to that which governs fans posting clips of live action from the sidelines of the match itself.
To protect the value of the rights to show action that they sell to commercial partners, rights holders need to educate the public that they risk engaging in copyright infringement by uploading broadcast footage from games, even if they are only short clips.
The Premier League and member clubs need to work with social media platforms to help them identify and remove copyright infringing clips. Ultimately they may need to go to court to establish a precedent on what types of clips from games infringe copyright and where the news reporting or quotation 'fair dealing' exceptions cannot be relied on by either media companies, other organisations or the general public.
Separately, football clubs can take steps to ban the filming of games within their stadium.
Whilst individual spectators will own the copyright in any images they take in football grounds, there are usually ticket restrictions that prevent any photography or filming for any purpose other than personal use.
Clubs should review the terms and conditions and consider whether to impose a wider restriction on photography and filming on their premises.
In addition, clubs that operate or are thinking of operating their own Wi-Fi networks in their stadiums should consider imposing conditions on the use of those networks during matches that prohibit the network being used to upload footage of action from those games to the internet.
These measures are likely to prove unpopular with fans and would be a challenge for stewards and police to enforce, but they would provide a means to restrict such behaviour under contract.