Cricket simulation beats Newsnight painting as copyright dodge, says expert

Despite the fact that Sky Television has the exclusive rights to broadcast the live action from the West Indies, Cricinfo.com is using computer animation to provide ball-by-ball coverage to non-Sky viewers.

A leading media law expert believes that Cricinfo is likely to have stayed on the right side of the law, but says that a similarly inventive trick by BBC news programme Newsnight did not manage to avoid a copyright breach.

Cricinfo, which is owned by Wisden, the company behind the Wisden Cricketing Almanac, uses data gathered by employees to simulate the action. The involvement of humans in the process is crucial, says Kim Walker, Head of Intellectual Property with Pinsent Masons, the law firm behind OUT-LAW.COM.

"Sky clearly own the copyright in the broadcast and that is what they have paid millions of pounds for and the question really is whether what cricinfo.com are doing is copying that broadcast – copying that copyright work," Walker told weekly technology podcast OUT-LAW Radio.

"It seems to me that if they have technologies, a software application which literally captures the broadcast and tracks it and converts it into an animated form then I think it is pretty hard to argue that is not copying the broadcast and therefore an infringement of copyright," said Walker.

"If, on the other hand, what they are doing is some guy is manually looking at the television screen and using his own efforts to create a new animated version of what is going on in the field of play over in the Caribbean, then that may not be an infringement of copyright because the cricinfo.com guy may be creating his own copyright work, albeit based on what he knows through the broadcast is going on on the field of play."

Wisden said that it had carefully consulted lawyers before going ahead with the simulations in this week's World Cup. "Cricinfo 3D is based on public domain information gathered by our scorers who record a number of factors such as where the ball pitched, the type of shot played and where the ball goes in the field," said a Wisden statement. "That data is then fed as an xml to anyone who has Cricinfo 3D running on their desktops and the software generates an animation based on this data."

Newsnight tried a similar simulation trick in recent days when it wanted to publish a photo of Conservative Party leader David Cameron in coat-tails finery as a member of a posh dining club while at Oxford University. Newspapers were prevented from publishing the politically damaging picture when the photographers withdrew the copyright.

Newsnight commissioned an artist to paint the photograph in oils, which it then showed. But Walker says that this is unlikely to have got the programme off the copyright hook.

"A photograph of a photograph is still an infringement of copyright in the original photograph and if you make an oil painting you are still copying the photograph," he said. "You might be adapting it from one medium to another but that is still an infringement of copyright."

"There is an exemption from copyright infringement of fair dealing with the copyright work for the purpose of reporting current events," said Walker. "But the problem with that is that it does not apply to photographs."