Technological advances over the four short years since the 2012 London Olympic and Paralympic Games present broadcasters with new opportunities for reaching their audiences but new challenges too. With the continuing expansion of smartphone usage, huge numbers of users can nowadays access good quality images of live, streamed or downloaded content wherever they are and whenever they want, a development which was in its comparative infancy for the London Games.
Given the huge audiences and value attributed to the Olympic and Paralympic broadcast rights (as discussed this month by Emma Sagir in Broadcasting the Olympics in Brazil and beyond), it is likely that unlicensed services will seek to make content from the up-coming Olympics and Paralympics in Rio de Janeiro available via mobiles, but to what extent can licensed broadcasters prevent this? A recent English case relating to sports rights (in this case, the broadcast rights to international cricket matches) provides a timely illustration of the issues and how they may play out under UK and EU copyright law.
The Claimants, the England and Wales Cricket Board ("ECB") and Sky UK, were the owners of the UK broadcast copyrights to international cricket matches involving the English team. The Defendants, Tixdaq and Fanatix, operated a website, apps and social media accounts, on which 8 second clips of England cricket matches could be viewed by users. The clips were recorded on mobile phones from broadcasts and uploaded, either by users or by the Defendants. Clips could be uploaded almost instantly and the reproduction was of good quality. Uploaders were told by the Defendants to add their own commentary to the clips and, more recently, to acknowledge the broadcaster and event. Did these services infringe copyright? Or were the uses protected by various exceptions and defences, in particular of fair dealing for the purposes of reporting current events? Finally, did they fall within the safe harbour provided by the hosting exception for user generated content?
The commercial background was important. Sky had spent a large amount of money in acquiring from the ECB the rights to broadcast and show some highlights within those broadcasts. In addition the ECB had licensed clip packages to other parties for limited uses. There was evidence that uncertainty over this litigation had deterred additional commercial deals.
EU law requires that Member States only provide exceptions to copyright from within a defined list, including the reporting of current events, but how each country does this is different and so local law on the exceptions needs considering. There was no dispute that a contemporaneous sports match was a current event. However, there was lengthy debate about whether what users did with the app was "reporting". The Judge noted that until recently what amounted to "reporting" had usually been obvious but, as new media technologies and citizen journalism uses evolved, it was becoming less so and a flexible approach had to be taken when considering how far it may go.
The Court held that the uses here were more for the "intrinsic interest and value" of the clips themselves rather than for reporting current events. While commercial uses could fall within the exception, here the use was held to be "purely commercial rather than genuinely informatory". This is an interesting finding as it renders the exception somewhat narrower than many sites would have hoped, but illustrates how fine a line there can be with some fair dealing tests.
A key issue then was whether the use was "fair". In determining this, the Court considered whether the service conflicted with the rights-owners' normal exploitation of the works in question. Here, the use of clips in the app, at the scale the app made possible, was held to be commercially damaging to the Claimants and to their licensees, and so did conflict with their normal exploitation. Some viewers would be less likely to subscribe to authorised services as a result. Meanwhile the rights-owners would find it harder to negotiate commercial licences for clips.
The Defendants unsuccessfully argued that the use was fair because the Claimants were not damaged and did not offer the same services, arguing that the app simply whetted the viewers' appetites for more content. The Court held that this did not render the use fair, and the rights-owner may choose to license such a service in future.
An argument only briefly explored in this case (as it would not have been determinative on the facts), but which may be more important in future cases was whether the safe harbour available to hosting services under the E-commerce Directive could protect the service. The Court's provisional view was that the hosting exception may protect the platform in respect of clips which had been uploaded and which it had not reviewed itself. However, as we have reported in our coverage of the latest announcements from the European Commission on the Digital Single Market (DSM) Strategy, the scope and future of the hosting exception is going to be debated as part of the DSM initiative.
However, it is not just commercial websites such as Fanatix.com that threaten the exclusivity of the Olympic and Paralympic broadcasting rights. With over 6 million tickets available for the Games and visitors to Rio de Janeiro from the 207 competing nations expected to number in excess of half a million, it is the average sports fan with a smartphone and a social media account who is likely to contribute to the greatest proliferation of unauthorised broadcasts, a problem to which there is, currently, no truly effective solution. The 8 second clips uploaded in the Fanatix case represented a very small proportion of the cricket matches, which could last for several hours. However, for many of the Olympic events, footage as brief as this could cover the whole event, or, at the very least, one competitor's participation. Further, while attendees at many sports events have been "banned" from using live streaming apps such as Periscope and Meerkat (discussed in the May 2015 edition of Download) by the sports' governing bodies, such as the Premier League, the NFL and the NBA, enforcement of such a ban, which relies on a contractual restriction imposed through purchase of tickets, is problematic. A recent example of the conflict between official broadcasting rights and user generated content was experienced during two recent Scottish Cup football replays, which took place at the same time as UEFA Champions League matches. UEFA bans the broadcast of live matches which conflict with Champions League matches, which meant that no official broadcasting rights were granted. However, numerous fans attending the Scottish Cup matches streamed footage live using Periscope, with an estimated 19,000 watching just one of the streams broadcast.
The All England Lawn Tennis Club insisted that their prohibition of use of live streaming apps by spectators at last year's Wimbledon tournament was merely an extension of the usual rule that mobile phones must be switched off "in and around the courts in play". However, where no such general mobile phone etiquette exists, as is this case with most public events, policing a ban on using streaming apps, as opposed to someone taking photos for their own private use, will be near impossible.
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