More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
The advent of social media has seen the popularising of the posting of video clips online, via clip apps such as Vine. One aspect of this is the posting of clips of goals being scored in football matches, with many thousands being posted during the Brazil World Cup alone. These clips are often posted within seconds of the goal being scored, thanks to the possibility of pausing and rewinding live TV. The start of the new Premier League season is also seeing many more such clips being posted.
However, the Premier League has said that the clips from Premier League matches are subject to copyright, that the tweeting of such copyrighted material is illegal, and that they are developing technologies to prevent the posting of this material.
Between them, Sky Sports and BT Sport have paid £3 billion pounds to show three seasons of live Premier League football, and newspapers have also purchased online rights for the goals. They obviously do not want people to be able to see the action for free.
However, is there actually a breach of copyright taking place?
The most relevant case in this respect is the 2011 decision of the Court of Justice of the European Union (CJEU), in what became known as the decoder case. This case held that the Premier League cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works; though sporting events may be protected by domestic legal orders, possibly by means of related rights (as is the case in France). Also, the Premier League is able to claim copyright in the broadcasts of the football matches, i.e. in the opening video sequence, the Premier League theme, pre-recorded highlight or compilation films.
Following the decoder case, there does appear to be copyright in an extract from a football match, as well as in extracts from a broadcast which permit the viewing of a piece of action from different viewpoints. As such, the unauthorised copying and posting of such clips could constitute an infringement of copyright.
There therefore arises the question of whether the unauthorised reproduction and posting of such a clip is subject to one of the exceptions under UK copyright law, specifically the reporting of news. In football matches, goals being scored are the most important moments of the match, and therefore are arguably also the most newsworthy.
For news broadcasters, EU Directive 2007/65 requires Member States to guarantee their right to make short news reports on events of high interest to the public which are subject to exclusive broadcasting rights, without the rights holders being able to demand further compensation.
For the news reporting exception to apply, it is necessary that the event itself is current (thus excluding extracts from matches occurring years ago); and that the dealing is fair, i.e. that only the relevant newsworthy action is shown in the clip, and no other less newsworthy action.
So, would the tweeting of goals from football matches qualify as news reporting? Goals are the most relevant and important parts of a match from a broadcasting perspective. However, they usually also represent the most important news from a match, and are thus the events that the news reporting exemption may be most applicable to.
In summary, while there may be copyright in the clips of goals, there is also an arguable case that anyone posting the clips on social media could successfully claim that the clips fall under the news reporting exception.
There is also an argument that social networking sites such as Twitter are now the primary source of breaking news, even more so than traditional news sites due to the speed of the updates, and so the posting of the clips on Twitter constitutes a legitimate reporting of breaking news.
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