How much is substantial?

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The High Court decision in England and Wales Cricket Board Ltd & Another v Tixdaq [1] was concerned with the unauthorised reproduction and distribution of cricket highlights in the form of clips lasting eight seconds.

The claimants own the copyright in the broadcasts of most cricket matches played by the England cricket teams (men and women). The defendants captured clips of the claimants’ broadcasts and distributed them through their website, apps and social media platforms.  The claimants instituted proceedings for copyright infringement.

The defendants denied infringement on the grounds that there activities were fair dealing for the purposes of reporting current events within the meaning of section 30(2) of the Copyright, Designs and Patents Act 1988 (the Act).  This provides: “Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement”.  Subsection (3) states that “no acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast where this would be impossible for reasons of practicality or otherwise”.

The first question for Arnold J to answer was whether the clips could be said to be a “substantial” part of the works in question. Under section 16 of the Act, the reproduction and distribution must be done to the whole of the work or a “substantial part” of it in order for there to be a finding of copyright infringement.  The length of a cricket match between international teams can vary – a test match can last up to five days, a one-day international typically several hours and a 20-20 match, just a couple of hours.  But even in the context of a rain-reduced 20-20 match, eight seconds is quantitatively not a substantial amount.  However, it could be a substantial amount in qualitative terms – for example, if the clip showed a key wicket (as would be the case for a clip of a goal in a football match).  The rationale for copyright protection in cases like this is to protect the broadcaster, or producer’s investment, as potential viewers are likely to watch a highlights package for the wickets, boundaries and key incidents – which was precisely the footage that the clips were showing.  In other words, an eight-second clip could be a substantial amount for the purposes of section 16.

On the section 30(2) defence, Arnold J considered that a contemporaneous sporting event was a current event for the purposes of the statutory defence but that the clips were not reproduced and communicated for the purposes of reporting but rather for the purposes of sharing the clips with other users and for facilitating debates amongst users about the events depicted. Or, as Arnold J put it: “The clips were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value. Furthermore, although the fact that a news service is a commercial one funded by advertising revenue does not prevent its use from being for the purpose of reporting current events, I consider that the Defendants’ objective was purely commercial rather than genuinely informatory.”  The section 30(2) defence was therefore not established and the claimants succeeded.


[1] [2016] EWHC 575 (Ch)