Copyright of broadcasts
When something such as a football match is broadcast that broadcast will be protected by copyright under the Copyright, Designs and Patents Act 1989. This means that if another body makes a copy of that broadcast and seeks to publish this through another means then they should be in breach of that copyright protection.
To infringe the copyright held in any protected works under the Copyright, Designs and Patents Act it is imperative to show that the individual infringing acted in a way in which only the person who holds the copyright protection in that work may act.
What is YouTube?
YouTube is a website which is run by the internet giants Google. It is effectively a file sharing website as it enables individuals to upload video files and other individuals to view these files. There are terms and conditions as to what may be uploaded by people but often this is extremely difficult for the site to police considering the huge amount of files uploaded to the site on a daily basis.
What kinds of videos should not be uploaded to the site?
Videos which show such things as excessive violence or sexual content will be in breach of the terms and conditions of YouTube and should not be uploaded to the site.
What action will YouTube take if these kinds of videos are uploaded to the site?
If the individuals in charge of the site become aware of certain content being uploaded to the site then they will remove this content. If they deem a particular user to be in continual breach of the terms and conditions of the site then it may be likely that they will prevent them from using the site at all.
Can I access Premier League content on the website?
Often following certain high profile Premier League football matches individuals will upload short clips of goals and highlights to the website to be viewed by other people.
Why would the Premier League have a problem with this as it does not affect their live broadcast?
It may be the case that small clips or highlights being uploaded onto YouTube following a Premier League football match does not affect the live showing of the match but it does have an effect on some rights held by the FA Premier League.
For example the FA Premier League will wish to sell small packages of highlights to certain media providers so that they can be accessed online or through mobile phones. This is a high value enterprise by the Premier League. If these clips can be accessed on YouTube for free and not through the designated providers which have paid for the rights then it severely weakens the value of any rights in these packages sold by the Premier League.
Will YouTube be in breach of the Premier League’s rights?
This issue has recently come before the courts in the United States in relation to the company Viacom bringing a claim for copyright infringement against the website. The FA Premier League was then added to the case as an additional claimant.
In this case the claim was brought that copyrighted material was being illegally uploaded and viewed on YouTube.
What did the court decide in this case?
The Court decided in this case that YouTube was protected by US legislation which provides for the fact that a service provider will not be liable for copyright infringement if it removes material from its site when notified by the copyright owner.
This means that the provider must know of the particular case before it can be controlled. Furthermore it was held that the provider does not need to monitor or seek out facts indicating such activity themselves.
What was the reason for this decision?
One of the main reasons behind this decision was due to the huge amount of material which is continually uploaded to YouTube. During the case this was reported to be around 24 hours worth of video being uploaded every minute. Accordingly this is too much for the site to police itself.
What can we draw from this case?
The main point to draw from the case is that if YouTube is showing Premier League material it will only be in breach of the copyright in that material once it has become aware of its existence on the site.
What happens if it becomes aware of its existence and does not remove it?
If the material is not removed following the site being made aware of it then this will indicate a clear breach of the copyright held in the material. If the site removes it once it has become aware of it then there will be no breach of the copyright.
Upon whom is the duty to identify the following material?
Following the case it appears that the duty to find the infringing material is placed upon the Premier League. It is their duty to notify the site as it is not the duty of the site to police the material.
Would the same decision be found under the Copyright laws of England and Wales?
Viacom has already stated their desire to appeal the decision but as yet there is no word from the Premier League on this matter. The Premier League may decide to bring a separate claim in the UK Courts, but it is not definitely clear whether the same decision would be reached.