England and Wales Cricket Board Ltd v Tixdaq Ltd and
another  EWHC 575 (Ch) is a decision of Mr Justice
Arnold concerning an iPhone/iPad app, which allowed the sharing of
eight-second clips of sporting events (inspired by the better known
The defendants (together "Fanatix"), which also
operate a website directed at sport fans, launched the app in 2015
and, amongst many sporting events, it featured footage from
Sky's coverage of England v New Zealand cricket games. The ECB
objected to this use and sued for copyright infringement.
The dispute centred around whether the eight-second clips
amounted to a "substantial part" of ECB's copyright
works, namely, broadcasts and films (and so were capable of
infringing the works) and, if so, whether the fair dealing defence
for "reporting current events" allowed Fanatix to use the
The judge noted that users who selected the eight-second clips
did so to extract interesting parts of sporting events. For this
reason it followed that even a short, eight-second, clip was
capable of satisfying the qualitative (rather than quantitative)
test for the purposes of establishing that a "substantial
part" of the broadcasts and films had been used. The clips
used the valuable aspects of the footage and therefore exploited
ECB's investment in providing the broadcasts and films.
Turning to the fair dealing defence, the judge considered
whether the clips were "for the purpose of" reporting
current events. He found that any commentary was secondary to the
use of the footage itself, taking it outside the exclusion.
He nevertheless considered the "fair use" aspect of
the defence. The judge explored whether the use by Fanatix
conflicted with ECB's exploitation (either current or future)
of the copyright works. He held that Fanatix's use was
commercially damaging to ECB – it encroached on what ECB was
entitled to do with the works.
The judge noted Fanatix's business case to investors, which
demonstrated they were trying to overcome traditional approaches to
licensing sports content, and commented that it was "pushing
legal boundaries" (even though seeking to act lawfully).
The case is a reminder that the degree of reproduction of a work
does not need to be quantitatively substantial in order to amount
to use of a "substantial part". The key is the quality of
the extracted part. It also highlights that, ultimately, pushing
the boundaries particularly for commercial purposes, when faced
with copyright content, is unlikely to be considered fair use. A
copyright holder has the right to fully exploit its copyright works
and may therefore look to take a slice of a new venture using such
works by way of a licence fee (or possibly stop the new venture
altogether). New app developers beware.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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