This morning BBC Newsbeat reported an interesting piece of news: the Football Association Premier
League (FAPL), which runs the Premier League, ie the leading professional football
league competition for football clubs in England, has said that it is going to
"clamp down on fans posting unofficial videos of goals online".
Despite the draconian FIFA IP Manual [here], this is also what happened during the recently concluded World Cup, when
people especially used Vine to
upload topical moments (read: goals) of the various matches onto social
media.
Broadcasting rights are
notoriously fairly expensive: Sky Sports and BT Sport recently
paid £3bn to show three seasons' worth of Premier
League matches, so it is important for broadcasters to secure exclusivity.
FAPL Director of Communications, Dan Johnson,
told Newsbeat that "You can understand that fans see
something, they can capture it [also thanks to the
possibility of pausing and rewinding live TV], they can share it, but
ultimately it is against the law." This is why FAPL is developing "technologies like gif
crawlers, Vine crawlers, working with Twitter to look to curtail this kind of
activity", also because "Twitter respects the
intellectual property rights of others and expects users of the Services to do
the same."
Meanwhile The
Sun, which together with The Times has secured the online
rights to Premier League matches, is also considering possible actions to
discourage people from posting goals online.
But is there a
potential copyright infringement in the first place?
The topical case in
this respect is the 2011 decision of the Court of Justice of the European Union (CJEU) in ... FAPL (also known as the decoder case),
in which - among other things - it was held that:
- FAPL cannot claim copyright
in the Premier League matches themselves, as they cannot be classified as
works [para 96];
- Sporting events as such may
be nonetheless protected by the various domestic legal orders [para 100], possibly by means of
related rights, as this Kat understands it to be the case in France;
- In any case FAPL can assert
copyright in various works contained in the broadcasts of its matches,
that is to say, in particular, the opening video sequence, the Premier
League anthem, pre-recorded films showing highlights of recent Premier
League matches, or various graphics [para 149];
- Broadcasters can invoke the
right of fixation of their broadcasts which is provided for in Article
7(2) of the Related Rights Directive, the right of
communication of their broadcasts to the public which is laid down in
Article 8(3) of that directive, and the right to reproduce fixations of
their broadcasts which is confirmed by Article 2(e) of the InfoSoc Directive [para 150].
So the question becomes:
- Whether a
film extract showing a particular action during a match, say a goal, is
protected by copyright and
- If so, whether unauthorised use by means of
reproduction, communication to the public and possibly distribution, may
nonetheless be permitted for Twitter users and alike under one of UK copyright
exceptions, notably news reporting. On the point of news reporting, it is worth
recalling that the situation is different for broadcasters. Directive 2007/65 requires Member States to guarantee the right of broadcasters
to make short news reports on events of high interest to the public which are
subject to exclusive broadcasting rights, without the holders of such a right being
able to demand compensation exceeding the additional costs directly incurred in
providing access to the signal.
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A busy schedule for Balthazar: Premier League goalkeeper by day ... |
Is there copyright in an extract from a
football match?
Following the CJEU judgment in FAPL, the answer
seems to be potentially in the affirmative. In this Kat's opinion, furthermore copyright does not only vest in those extracts that include the
copyright-protected works mentioned by the CJEU, including the Premier League
and Barclays logos, as Arnold J clarified in FAPL v BSkyB and Others (see paras
8 ff; this action originated as an application for a blocking injunction as per
section 97A of the Copyright, Designs and Patents Act 1988 (CDPA)).
There is also copyright in those
broadcast extracts which are assembled in a particular way that would allow one
to view - and re-view - a certain action from a number of different angles, as
may be the case of goals. Those extracts may possess the sufficient degree of originality
for the sake of copyright protection, no matter whether they include the Premier League anthem, pre-recorded films, etc: they are their author's own intellectual
creation. Hence, unauthorised reproduction and subsequent communication to the
public might be an infringement.
Would the news reporting exception
apply?
As explained by Cornish, Llewelyn and Aplin, to fall within
section 30 CDPA exception, it is required that (1) the event itself is current
(so no extracts from football matches that took place years ago); and (2) the
dealing is fair. The latter requirement needs to be read in conjunction with a number of
cognate provisions, including section 31 CDPA (Incidental inclusion of
copyright material). So for instance, in the 2008 FAPL v QC Leisure litigation it was held
that inclusion of the Premier League anthem was not essential for the purpose
of showing the player line-up.
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... compulsive twitterer by night |
Would, say, the tweeting of film extracts from
football matches' topical moments qualify as news reporting? On the one hand it
is true that goals are the most valuable parts - also broadcasting rights-wise
- of a match. On the other hand they also represent the real piece of news
coming out of a match and, therefore, the moments that are most eligible for
this exception to apply. So, by way of exemplification, while showing the moment of,
say, an offside offence might not be as valuable as that of a player scoring a
goal, it seems unlikely that the offside offence moment would be considered
more newsworthy than a goal and its dealing fairer.
Overall, despite being arguable that
copyright subsists in goal videos, it would seem equally arguable that those
uploading them onto social media might be able to invoke the news reporting
exception successfully, of course provided that their dealing is fair, ie limited to reporting the newsworthy moment, which is the scoring of the goal, and not other moments.
This conclusion is also supported by the consideration that social networking
sites like Twitter have become the ultimate newswires, even supplanting AP,
Dow Jones and Bloomberg for breaking news, and also freedom of expression
concerns have become particularly pressing. In this respect, reliance on provisions
like Article 10 of the European Convention of Human Rights might be
fairly effective [see the recent take of Birss J here] to avoid a narrow construction of section 30 defence which - as even the
Court of Appeal of England and Wales in Ashdown acknowledged - "reflect[s]
freedom of expression in that, in the specific circumstances set out and
provided that there is ‘fair dealing’, freedom of expression displaces the
protection that would otherwise be afforded to copyright."
What do readers think?
To me, it seems that if the FAPL case concluded that copyright does not subsist in a match itself, then FAPL should not be able to prevent fans from posting their own videos filmed live at the ground to social media. However, this seems to be what the FAPL is saying is 'against the law' and, presumably, this is something they do wish to crack down on to preserve exclusivity for broadcasters.
ReplyDeleteIt seems to me that the human rights arguments is different from the news reporting one. It is a human right to impart and receive ideas and information (whether or not they are newsworthy). In this respect Birss seems to be saying copyright protects 'expression', and cannot interfere with an exchange of 'information'. However I don't know how one would distinguish the two.
ReplyDelete@anon 12:40
ReplyDeleteThat's the way I see it to, and it seems fairly straightforward too. If the match is not a copyright work, then someone filming a video and then tweeting it surely can't be breaching any copyright?
They may be breaking other laws / rules by filming within the stadium (perhaps one of the Terms and Conditions of the admission ticket was not to film the match?), but these are unrelated to copyright.
Anonymous @ 12:40,
ReplyDeleteIs there a no-video-may-be-taken policy at the matches?
If so, then the fruits of violating that policy would seem to be fair game for control (even on social media), and such control would rely on contract law rather than (solely) copyright law.
If not, then even copyright law would not seem to be enough for the league to express control, as it would be the individual that would be earning the copyright by their actions to fix the event (with the event itself un-copyright-able in and of itself) in tangible media and it would be the individual not the league that thus would have control.
Here in the States, our football (and all other professional sports at that) prominently announces such contractual controls, so this discussion is largely absent here.
From the comments I heard on the Radio 4 Today programme, I think some spectators are videoing replays shown on a screen in the ground and not necessarily the match itself. There would be copyright in the replays I imagine.
ReplyDeleteThe facebook entry:
ReplyDeleteHi Andrew, If someone posts clips of material being broadcast it is possible they are breaching copyright. All social media users should take care to ensure they have the necessary copyright permissions for material that they post.
There are a number of exceptions to copyright, including the exception permitting fair dealing with a work for the purpose of reporting current events. Whether the exception could apply in this case would depend on the facts, including whether or not the clip constitutes a 'current event'. Ultimately only a court can rule definitively on whether a particular use is permitted by an exception. Among other things, the courts look at whether the use of the work undermines or competes with existing licensing arrangements.
As you can see from sites like [this site]... the debate continues.
For more information on copyright exceptions please see:
[multiple links omitted]
Andrew, I think that your responses are assuming the answer that you want, and missing the point that the news exception may in fact not apply. Further, it is not for want of lack of clarity, as much as it is that the defenses to copyright infringement are written as personal case by case, fact pattern by fact pattern defenses, and the clarity of each case is only available on that case by case level.
They need to know their place. We the fans are what makes them a lot of money in the first place.
ReplyDelete