The media have reported that the Premier League is intending to clamp down on the unauthorised uploading of clips from televised football matches. This is in response to a rapid increase in the volume of uploads by fans of short video clips, typically goals, often within seconds of the goal being scored. The Premier League has warned fans that this is a breach of copyright.
Is there a breach of copyright?
The leading case in this area is the European Court of Justice ruling on the use of digital decoders, which was a decision made in the context of the use by UK-based publicans of foreign decoders to broadcast Premier League matches . In that case, the Court of Justice ruled that live sporting events do not of themselves qualify for copyright protection but that aspects of the broadcast, such as opening sequence, theme tune and pre-recorded highlights might do. This means that it is certainly possible that posting online clips of goals taken from broadcasts could constitute copyright infringement.
In the UK, copyright can only be infringed if the unauthorised use of the material involves the whole or a “substantial part” of the copyright work. However, a substantial part can refer to quality as well as quantity and important incidents in a match, like a goal, a sending off or missed penalty, could be deemed to be “substantial” for these purposes.
Is there an available defence to copyright infringement?
The first possibly applicable copyright exception is that which allows copyright material to be used without the rights holder’s permission for the purpose of reporting current events. This is subject to the requirement that the use made of the material is “fair dealing”. Taking an excessive amount, or taking small amounts on a regular basis, can render the dealing unfair. Also, to be “fair”, the clip should not include non-newsworthy material (a substitution perhaps?). It is also necessary for the event in question to be current (so games from last season would not be covered, for example).
No doubt the Premier League or other rights holders would argue that, where consumers post material to social media sites, it is not done for the purpose of reporting current events. On the other hand, an increasing number of people nowadays get their news from sites like Twitter rather than from more traditional media; and goals – as the most newsworthy aspect of a game – would probably fall within the exception, if it were held to apply.
A second copyright exception which might apply is the right to quote copyrighted material, which only came into effect on 1 October this year. The fair dealing requirement applies to this defence as well.
It is possible that ultimately the issue of whether uploading clips of matches to social media is copyright infringement will have to be determined by the courts. This issue is important, not just for the rights holders and for fans, but also for the social media platforms which may be faced with the requirement to police their sites in the future for infringing material. The issue is also relevant to News Corporation, as the ultimate owner of The Times and The Sun newspapers, which have secured the online rights to Premier League matches in a deal worth millions of pounds.
 Case C-403/08