England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] EWHC 575 (Ch) |
| Docket Number | Case No: HC-2015-002993 |
| Court | Chancery Division |
| Date | 18 March 2016 |
[2016] EWHC 575 (Ch)
Mr Justice Arnold
Case No: HC-2015-002993
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Howe QC and Nick De Marco (instructed by Onside Law) for the Claimants
James Mellor QC and Maxwell Keay (instructed by Lee & Thompson LLP) for the Defendants
Hearing dates: 29 February-2, 4 March 2016
Contents
| Topic | Paragraphs |
| Introduction | 1 |
| The parties | 2–5 |
| The witnesses | 6–7 |
| The Claimants' witnesses | 6 |
| The Defendants' witnesses | 7 |
| Factual background | 8–40 |
| The Claimants' copyright works | 8–9 |
| Exploitation of the Claimants' copyright works | 10–15 |
| Sports News Access Code of Practice ("SNAC") | 16–20 |
| The genesis of the dispute | 21–28 |
| The App | 29–32 |
| The evolution of the App | 33–38 |
| The Website | 39 |
| The Social Media Accounts | 40 |
| The legislative context | 41–52 |
| International treaties | 41 |
| Rome Convention | 42–43 |
| WIPO Copyright Treaty | 44–46 |
| European directives | 47–49 |
| 47–48 | |
| 49 | |
| Domestic legislation | 50–52 |
| 50–51 | |
| Electronic Commerce Regulations | 52 |
| Applicable legal principles | 53–93 |
| Interpretation of domestic legislation in the context of European directives | 53 |
| Interpretation of European directives | 54–57 |
| Copyright in broadcasts and films | 58–59 |
| Substantial part | 60–67 |
| Interpretation of section 30(2) in accordance with Article 5(3)(c) | 68–70 |
| The CJEU's approach to the interpretation of exceptions | 71 |
| The relevance of Article 5(5) | 72 |
| The relevance of Article 10 ECHR and Article 11 of the Charter | 73 |
| Domestic authorities on the interpretation of section 30(2) | 74 |
| "For the purpose of" | 75 |
| "Reporting current events" | 76–82 |
| Fair dealing | 83–85 |
| Sufficient acknowledgement | 86–87 |
| The three-step test | 88–92 |
| Mere conduit and hosting | 93 |
| Liability for the commission of any infringing acts | 94 |
| Was each clip a substantial part of one of the Claimants' copyright works? | 95–102 |
| Scale of use | 103–104 |
| Assessment of the fair dealing defence: versions 8.2 and 8.3 of the App | 105–151 |
| Was the use for the purpose of reporting current events? | 106–129 |
| Were the clips accompanied by a sufficient acknowledgement? | 130–135 |
| Version 8.2 | 130–132 |
| Version 8.3 | 133–135 |
| Was the use fair dealing? | 136–150 |
| Does the use conflict with normal exploitation of the works? | 137–147 |
| Have the works been published? | 148 |
| The amount and importance of the work taken: is it justified by the informatory purpose? | 149–150 |
| Overall balance | 151 |
| Assessment: versions 8.3.2 and 8.4 of the App | 152–156 |
| Was the use for the purpose of reporting current events? | 154 |
| Were the clips accompanied by a sufficient acknowledgement? | 155 |
| Was the use fair dealing? | 156 |
| Assessment of the fair dealing defence: versions 8.5 to 8.5.4 | 159–166 |
| Is the use for the purpose of reporting current events? | 160 |
| Are the clips accompanied by a sufficient acknowledgement?s | 161 |
| Is the use fair dealing? | 162–166 |
| Mere conduit or hosting | 167–171 |
| The website and the Social Media Accounts | 172 |
| Flagrancy | 173 |
| Summary of principal conclusions | 174 |
Introduction
The Claimants are the owners of the copyrights in television broadcasts, and in films incorporated within such broadcasts, of most cricket matches played by the England men's and women's cricket teams in England and Wales. The Defendants operate a website located at www.fanatix.com ("the Website") and various mobile applications, in particular the fanatix app for use on Apple iPhones and iPads ("the App"). Prior to the giving of interim undertakings on 27 July 2015, the Defendants' employees, contractors and users uploaded a considerable number of clips of broadcasts of cricket matches lasting up to 8 second to the App where they could be viewed by users. Users could also view such clips on the Website and on the Defendants' Facebook page and Twitter feed ("the Social Media Accounts"). The Claimants contend that the Defendants have thereby infringed their copyrights. The Defendants deny infringement, relying primarily upon the defence of fair dealing for the purposes of reporting current events and secondarily upon immunities for acting as a mere conduit and hosting. A defence of fair dealing for the purposes of criticism or review was not pursued in closing submissions, and no defence of fair dealing for the purposes of quotation was ever advanced. The Defendants also counterclaim for a declaration of non-infringement in respect of the most recent versions of the App, namely version 8.5 and subsequent versions. Although the allegations of infringement range more widely, it is the App which is at the centre of the dispute, and accordingly I shall concentrate on that.
The parties
The First Claimant ("the ECB") is the governing body of cricket in England and Wales. It is a private company limited by guarantee, which re-invests any profits which it generates for the benefit of all levels of cricket in England and Wales. The ECB is responsible, among other things, for the organisation and commercial exploitation of all cricket matches played by the England men's and women's cricket teams in England and Wales, save for matches played by those teams in England and Wales in events staged by the International Cricket Council ("the ICC"), such as the ICC World Cups.
The Second Claimant ("Sky") is a well-known United Kingdom pay-television operator which operates (amongst others) the Sky Sports satellite broadcast television channels and related digital services.
The First Defendant is an English private limited company which was incorporated on 13 December 2006. It operates the various "fanatix" services referred to above. In addition, it operates a number of football-related websites and mobile applications. It also operates a website at www.tixdaq.com, which is a search engine for sports and entertainment event tickets.
The Second Defendant is another English private limited company which was incorporated on 11 March 2011. It has the same registered office as the First Defendants, and a common director and shareholder (Mr Muirhead). At present, the Second Defendant is dormant. For convenience, however, I shall generally refer to the Defendants collectively.
The witnesses
The Claimants' witnesses
The Claimants called the following witnesses:
i) Sanjay Patel is the Commercial Director of the ECB.
ii) Richard Verow is the Commercial Director of Sky Sports at Sky.
iii) Philip Davies is Head of Cyber Security and Content Protection at Sky.
iv) David McLean is the Head of Media Rights and Video Services at News Corp UK & Ireland Ltd ("News UK").
v) Paul Molnar is the Director of Broadcasting at the Football Association Premier League Ltd ("FAPL"). FAPL is not directly involved in these proceedings, but it is interested because the Defendants' services also feature clips of broadcasts of Premier League football matches (as well as other sporting events).
vi) Richard Burgess is Head of Sports News and Radio Sport at the British Broadcasting Corporation ("the BBC"). Through no fault of his own, Mr Burgess was placed in a difficult position. The Claimants asked the BBC to verify the accuracy of Mr Grigg's analysis of the BBC's use of Sky cricket broadcasts (as to which, see below). The Claimants failed, however, to provide the BBC with copies of Mr Grigg's recordings (i.e. the data underlying his analysis). Mr Burgess responded to this request in a letter which the Claimants served under cover of a hearsay notice. Unsurprisingly, the Defendants asked to cross-examine Mr Burgess. The analysis contained in his letter had not been carried out by Mr Burgess personally, but by a BBC team. The letter did not explain the methodology they had followed or include the underlying data they had analysed. Mr Burgess was not sure of the methodology employed, and had difficulty in explaining discrepancies between the BBC analysis and Mr Grigg's.
vii) Richard Moyes is a forensic expert employed by the Federation Against Copyright Theft Ltd ("FACT"). Although Mr Moyes was called as an expert witness, his evidence did not involve his expertise in computer forensics. Rather, it involved testing the functionality of the Website and App and recording the results. As such, it was what I would describe as quasi-expert evidence, in that it needed to be prepared in a methodical, thorough, objective and transparent manner. Counsel for the Defendants submitted that Mr Moyes had not even attempted to produce a fair and balanced report on the functionality of the Defendants' service. I do not accept this criticism of Mr Moyes' evidence. His instructions were to ascertain whether the restrictions relied on by the Defendants were consistently applied and/or could be avoided by users, and that is what he did. The Defendants do not suggest that his conclusions were inaccurate.
The Defendants' witnesses
The Defendants called the following witnesses:
i) William Muirhead is the Chief Executive Officer, a director and a shareholder of the First Defendant, and a director and the sole shareholder of the Second Defendant. Counsel for the Claimants submitted that Mr Muirhead was not an honest witness. I do not accept this, although I do agree that some of the evidence in his first witness statement was not entirely frank and that there was a troubling discrepancy between what he had told investors about the extent of use of the App and his evidence to...
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