England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another

Hearing dates: 29 February-2, 4 March 2016

Contents

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 the court. Mr...