A recent High Court decision decided that an App, fanatix, which enabled users to use screen capture technology to make clips of sporting broadcasts of up to 8 seconds long and upload them for sharing was an infringement of the reproduction and making available rights of the copyright owner in the TV broadcasts and films of the sporting fixtures. The defence of fair dealing for the purposes of reporting current events did not apply because the court found that the predominant purpose of the App was to enable the sharing of clips with other users, not the reporting of current events. This primary purpose did not change even when the Defendants took specific steps to meet the copyright owners concerns. (England and Wales Cricket Board & Another v Tixdaq Ltd & Anor  EWHC 575 (Ch), Arnold J, 18 March 2016).
This decision will hearten broadcasters and those licensing rights to sports matches as it recognises the intrinsic value of clips of broadcasts and films, and the commercial drivers behind licensing only clips. Equally, it will be disappointing for those with Apps which enable clip sharing, where caution will now be needed, if the clips include the copyright works of others, and the app provider engages in any sort of editing function.
- For those dealing with copyright more generally in business, the decision is useful in several respects.
- It contains a review of the hierarchy of applicable treaties and laws in the area of copyright, and stresses the purposive approach to interpretation of Directives required by European law, casting doubt on the validity of older UK authorities on fair dealing which may now not be consistent with the requirements imposed by EU law.
- It looks at how to approach the test of substantiality for broadcasts and films (signal copyrights) where originality of the work is not required to qualify for copyright protection.
- It gives a detailed consideration of the approach to and application of the fair dealing defence, particularly on what amounts to the reporting of current events, and acknowledging that "citizen journalism" may fall within the provision. It recognises that this defence is not limited to reporting on news, but includes sports fixtures and other events. Whilst the case emphases the need to identify the primary purpose for the use of the copyright work to apply the fair dealing test, it also raises the question over whether the fair dealing test in section 30(2) CDPA is the same as the three step test found under the Berne Convention.