As the new season of the Premier League kicked off over the weekend, the Football Association Premier League (FAPL) has issued a warning to people posting unofficial videos of goals online, stating that these videos are in 'breach of copyright'.
Thousands of 'Vines' (a service which allows users to record, edit and share seven-second long videos) of goals were posted online during the previous Premier League season and during the recent World Cup, with some being uploaded within seconds of the goal being scored.
SKY and BT have between them paid £3 billion over 3 seasons for the exclusive rights to broadcast Premier League matches. With so much money being spent to secure these rights, it is obvious to see why the FAPL is anxious to keep its licensees happy.
Another interested party is The Sun which, along with The Times, has bought the online broadcasting rights, and charges £8 a month in subscription fees for its Sun+ service, which hosts goals online within a few minutes of the ball crossing the line.
The most popular Vine accounts attract hundreds of thousands of followers and allow videos of goals to be posted online within seconds, to be viewed for free by anyone with access to the internet. It is no wonder therefore that these Vine videos are seen as a real threat to the services provided by official broadcasters.
Is the content of a broadcast, i.e. a Premier League match, protected by copyright?
In 2012 we reported on what is now known as the 'decoder case'. In this case the Court of Justice of the European Union (CJEU) held that the Premier League cannot claim copyright in Premier League matches itself as they cannot be classified as works; however, certain elements, such as the Premier League anthem and graphics and logos used in the program are subject to copyright.
If we follow this line of reasoning, then it would seem that any Vine video of a broadcast which includes elements such as those mentioned by the CJEU would be subject to copyright, and it is likely that most Vine videos of goals posted online will include such protected elements.
In a typical official broadcast of a Premier League match for example, the score is usually shown in an identifiable way along with the logo of the broadcaster and/or Premier League in the top left corner of the screen. It is likely that any copying of this broadcast (logos included) would be an infringement of copyright.
Following the decoder case the FAPL has already sought to increase the prominence of such copyright protected elements in its broadcasts, making it harder for individuals to post videos without infringing copyright at the same time as reinforcing the position on the use of foreign decoders.
Is the footage itself protected by copyright?
However, what if a video was posted online with those copyright protected elements cropped out? In order to edit a video, to remove it of the protected elements, it would presumably be necessary for the original video to be copied onto a device on which the editing may be carried out. The act of copying the original video would be an infringement of copyright.
In addition, whilst the matches in and of themselves cannot be classified as works (following the CJEU's reasoning), could it be argued that the edited content of a broadcast of a match, as opposed to a simple recording of the match, may be protected as a dramatic work? According to recent UK case law, originality requires a modicum of skill and labour in creating the work and there needs to be some effort on the part of the creator.
It's certainly arguable that the exertion of skill and labour in positioning the cameras, cutting to close-ups, choosing the camera angles etc. is enough to qualify for copyright protection as a dramatic work, including the moment a goal is scored.
Previous case law found that recordings of sporting events do not enjoy copyright in and of themselves but there has been no consideration of this issue in the years since filming techniques became more elaborate - the CJEU did not consider the issue in any depth.
What about the broadcast signal itself?
Even if the content of a sporting broadcast is not protected by copyright the transmission of it will be. In the UK, under the Copyright, Designs and Patents Act 1988 (CDPA) broadcasters benefit from copyright in either terrestrial or satellite broadcasts, and in internet transmissions under certain circumstances. Both SKY and BTs' methods of delivering the matches satisfy the CDPA's requirements and as a result the act of copying and uploading Vine videos of the goals constitutes a beach of copyright.
For a finding that the copyright has been infringed a 'substantial part' must have been copied, however the test is qualitative and although it may be a matter of seconds, footage of a goal is likely to be considered a substantial part of the broadcast of any football match. This is very much a question of interpretation however, and would need to be evaluated on a case by case basis.
Could it be argued that, by posting videos of goals online, these individuals are in fact reporting football related news, and therefore have a defence of 'fair dealing' under section 30 of the CDPA for reporting current events?
Social media has become one of the most effective forums for reporting news, especially for sport. Indeed, it is often quicker to check a football score by refreshing your Twitter feed than it is by refreshing your news app. There is also no legal requirement for the individuals posting the videos to be "news reporters" in the conventional sense. It would be interesting to see the court's view on this argument.
What can the FAPL do?
It has been suggested by some commentators that the FAPL's recent warning to fans is nothing more than a scare tactic, and although this may be true, there does appear to be some grounds for believing that it may have some success taking legal action.
Whilst the FAPL considers its options, it is likely in the meantime to continue to apply pressure on social media sites to take action in the form of removing individual videos and blocking the accounts of repeat infringers.
However, with so many videos being uploaded, it is logistically a huge challenge to keep track of them all, and by the time the videos have been removed, the damage will already have been done.