Sharing sports clips in the digital age: 6 things you should know

Published 28 June 2016 By: Jonny Madill, Jack Jones

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The way sport is being reported, broadcast, accessed and consumed is changing. One notable trend is the emergence of new technology, and in particular social media platforms and networks which allow fans to capture, upload and share short videos of sports content online via websites or apps. 

The phenomenon of using smart devices to watch and share clips of sporting action (whether goals, wickets, tries, sendings off or other incidents) has hit the headlines recently,1 after the England & Wales Cricket Board (ECB) and Sky were successful in their copyright infringement claim against sports mobile social network, Fanatix. The Fanatix platform allowed users to upload short clips of sports broadcast footage recorded from fans' phones.

This blog looks at some of the key issues for sport’s key stakeholders. Whether you’re a sports rights holder or broadcaster, social media platform or network, or a fan with a smart device, here are 6 things to bear in mind.

 

1. Is uploading a clip recorded from a TV broadcast an infringement?

Broadcasters of sports events in the UK enjoy copyright protection in transmitted programmes as broadcast works. Fans videoing, editing, uploading and/or distributing clips of sporting action from live footage may therefore be infringing the broadcaster’s copyright.

 

2. Are sports clips platforms therefore at risk?

Yes, but there are ways of managing this. Sports social networks and digital platforms can get a licence from the relevant content owners to use the content, however this is usually both time consuming and costly. Alternatively, under English law, social media sites and internet service providers (ISPs) are protected from liability when it comes to intellectual property infringement relating to user generated content submissions if:

  • the platform does not have actual knowledge of the infringing activity, or is not aware of the circumstances from which the infringing activity is apparent; and
  • having obtained such knowledge or awareness, the platform acted expeditiously to remove the infringing material. 

Principally, platforms should prohibit users (in their T&Cs) from infringing any third party’s IP rights in order to eliminate any risk of being liable themselves and provide sufficient contact details for sports rights holders to notify them of infringing content. 

 

3. Should an app review content or simply provide a platform for sharing content?

One of the most important issues raised in the recent ECB/Sky decision2 was that of “editorial review”. It is of significance if social media networks decide to editorially review their users’ posts (like Fanatix did), or simply operate as a platform that facilitates users’ sharing of clips. Many sports apps instead have a flagging system and/or effective contact avenues for them to be notified of infringing content. By editorially reviewing content, apps are unable to rely on the E-Commerce Directive “hosting” defence because ultimately they will be deemed to have had knowledge and awareness of the infringing activity. 

So what should apps do when notified of an infringement? Act quickly. Once notified by a rights holder (for example, the Premier League) of an infringement, sports clips apps should act expeditiously by removing the offending material in order to avoid being liable itself. 

 

4. What about the defence of “fair dealing” linked to news reporting?

This concept was addressed in the ECB/Sky judgment. Ultimately, the Court’s view was that the primary purpose of Fanatix was not to report current events, but rather to allow users to view and share clips. Its use couldn’t be “fair dealing” because it conflicted with the services of the rights holder (ECB) and its licensees. Interestingly the judgment states that “clips were not used to inform the audience about a current event. The objective was purely commercial rather than genuinely informatory. Sports clips, even if only a few seconds in length, represent key moments of an original broadcast, and therefore constitute a substantial part of the relevant copyright work. 

 

5. What about fans recording clips at a stadium?

Clips recorded by an individual at a stadium (on a smartphone or other camera) would not actually constitute a work that is protected by copyright. This is because there is no copyright in the actual live event. However, that doesn’t mean a fan in the stadium with a smartphone camera in hand isn’t in breach. The conditions of entry into most sporting stadia (i.e. the terms and conditions governing the purchase of the ticket) will in all likelihood state that filming of matches or parts of matches within the stadium is strictly prohibited. 

 

6. What are the on-going challenges for broadcasters and sports rights holders?

The colossal investment by many traditional broadcasters and rights holders in the acquisition of media rights means that some will be inclined to follow the lead of the ECB (and the Premier League who has taken a firm stance in recent times) in seeking to enforce such rights. The current landscape presents a clear opportunity, though, for traditional rights holders to increase both the quantity and quality of their engagement and interactions with existing and potential consumers. 

Facebook and Twitter have recently targeted sports media rights as a means of energising engagement on their platforms, take for example the recent Twitter deal to stream Thursday night NFL games. Expect to see the trend continuing of more content being published on social and digital media (with short highlights clips being the obvious example). With that in mind, these issues will continue to dominate the digital sports industry. 

This article was written for Sheridans Sports Team’s “BackPage” series and republished with permission of the authors. Find out more about the team here.

 

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Author

Jonny Madill

Jonny Madill

Jonny Madill is an Associate in the Sport Group.

Jonny advises on commercial, technology, regulatory, governance, disciplinary and dispute resolution matters within the sports sector.

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Jack Jones

Jack Jones

Jack Jones is an associate in the Computer Games and Digital Media Groups. He specialises in advising clients on work across computer games, sport, and commercial intellectual property issues.

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