England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor  EWHC 575 (Ch) (18 March 2016)
The Claimants contended that the Defendants had infringed their copyrights under Article 2(d) and (e) of Directive 2001/29/EC (“the Information Society Directive”) by uploading a considerable number of clips of broadcasts of cricket matches to one of the Defendats’ mobile applications (“the App”). The Claimants were 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 denied infringement, relying primarily upon the defence of fair dealing for the purposes of reporting current events according to Article 5(3)(c) of the Information Society Directive and secondarily upon immunities for acting as a mere conduit and hosting under Articles 12 and 14 of Directive 2000/31/EC (“the E-Commerce Directive”).
It was decided that the use made of the copyright works uploaded to the App was not for the purpose of reporting current events. The clips were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value. The court held that the use of the Claimants’ copyright works by different versions of the App did not amount to fair dealing. Article 12 on its own would not provide the Defendants with a defence because the Defendants’ service did not merely involve transmission of information, but also storage and Article 14 defence would be available to the Defendants in respect of user-posted clips which were not editorially reviewed, but not in respect of clips which were editorially reviewed (to date most clips have been editorially reviewed). Accordingly, the conclusion was that the Defendants infringed the Claimants’ copyrights in those works.
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