Acting to stop harm: the FCA and Appointed Representatives
2014 marks 50 years since the BBC’s Match of the Day started providing generation after generation of football fans with highlights of the weekend’s goals and major talking points. These weekend round ups, however, are no longer enough for most football fans who, fuelled by the rise in social media, demand up-to-the-minute football coverage.
The Premier League have tapped into this, selling not just the rights to broadcast live Premier League matches (most recently to Sky and BT for a whopping £3 billion) but also the online rights to show match highlights to The Sun and The Times in a deal believed to be worth £20 million over three seasons. As a result, near instantaneous footage of Premier League goals can now be viewed on the mobile apps of these publications for a monthly fee.
In the last decade, however, these highly lucrative rights have come under attack as near live footage is shared via social media apps, most recently on the six-second-long video sharing service Vine and its parent company, Twitter.
This presents a problem for the Premier League, which has brokered large deals based on the exclusivity of broadcasting Premier League matches and is keen to keep its licensees happy. Having recognised the problem, the Premier League, at the start of the 2014-15 season, warned fans to refrain from posting such footage explaining that it was a breach of copyright.
So, what is copyright?
Copyright is a property right that exists over certain types of work preventing others from reproducing it without the copyright holder’s permission. Works afforded this protection include literary, musical and artistic works, films and broadcasts. These works acquire the protection automatically, as soon as they are recorded in permanent form.
The purpose of copyright law is to reward the creators, who have exerted effort in creating the work, for the creation of said original work. A broadcast is one of the works protected by copyright and is defined as an electronic transmission of visual images, sounds and other information which is transmitted live or as part of a scheduled broadcast. An infringement occurs, putting it simply, when the whole or a substantial part of a broadcast is reproduced without permission from the owner of the broadcast. Reproducing the whole or part of a broadcast by Sky or BT on social media therefore, is highly likely to constitute an infringement of copyright.
The problem for both the Premier League and the broadcasters involved is that policing copyright infringement on social media is incredibly difficult. This is because it is a round the clock job and the list of potential infringers is endless. From a practical perspective, it is also necessary to approach social media platforms in respect of each item of footage which breaches copyright and request that such offending content is removed. Another problem is that the vast majority of social media platforms are normally able to evade liability for their users’ infringements. They do this by having a policy of not actively moderating user content, albeit while expeditiously complying with valid content removal requests thereby taking advantage of statutory protection for unwitting conduits of infringing material. It is therefore, individual users who ultimately bear legal responsibility for infringements on social media.
From a cost-reward perspective, pursuing an individual (rather than a social media platform or even an internet service provider) for an infringement of copyright is unappealing, and in any event, this would only be an option if the rights holder managed to jump through privacy hoops and actually establish the identity of the individual user first.
Given the above, and despite the likelihood of it being against the law, do not be surprised to continue to see the biggest and best moments of the Premier League being posted, shared and re-shared across social media platforms.
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