Sports and Media News Briefing for February 2012: "FA Premier League v QC Leisure and Karen Murphy v Media Protection Services Limited" update

03 February 2012

Justin Walkey, Richard Eccles, Paul O'Dowd

There has been another twist in the saga of the use by publicans of imported Greek decoder cards to screen FA Premier League (FAPL) matches in their pubs.

As explained in our briefing of October 2011, two joined cases FA Premier League v QC Leisure and Karen Murphy v Media Protection Services Limited, were referred by the High Court to the Court of Justice of the European Union (CJEU) for a ruling on various questions of EU law.  This ruling, explained in our October briefing, has to be applied to the facts of the case by the English court and the High Court (Chancery Division) has given judgment in the first of these two cases (the High Court judgment in the second, Karen Murphy v Media Protection Services Limited being expected in April).

The CJEU held that, as a matter of EU law, the EU free movement of services rules prevailed so as to allow importation of the Greek decoder cards despite the subsistence of intellectual property rights of FAPL in the relevant materials (the opening video sequence, the FAPL anthem, some pre-recorded highlights films and graphics).  It also held that territorial restrictions in the relevant broadcasting licence agreements against the supply of decoding devices outside the contract territory (Greece) constitute absolute territorial restrictions by their object and therefore infringe the EU competition rules under Article 101 TFEU.

FAPL appeared to have succeeded in terms of the CJEU ruling, insofar as the CJEU concluded that screenings to customers of public houses constituted a "communication to the public" within the meaning of the EU Copyright Directive (Article 3(1)).  This meant that FA Premier League, as copyright holder, had a right to authorise and to require payment for the screenings.

The judge in the High Court Chancery Division has now given final judgment on the substance in the light of the CJEU ruling (though further declarations and orders are to be made implementing the judgment) and for this purpose has applied the UK legislation, in particular the Copyright Designs and Patents Act 1988 (the "CDPA") rather than the EU Copyright Directive itself.  Although there is a duty to interpret national legislation as far as possible in line with any relevant EU Directive, the task of interpreting UK legislation cannot go so far as to recast the provisions or to contradict the plain intention of that UK legislation, in taking account of the EU Directive.

The Chancery Division judgment, given by, Kitchin LJ, concluded that the CDPA correctly transposes the provisions of Article 3 of the Copyright Directive into national law, giving a right to copyright holders to authorise communications to the public, and the judge applied s.20 CDPA in the same way as the CJEU stated that Article 3 of the Copyright Directive should be interpreted, i.e., in favour of FA Premier League as copyright holder, to the effect that the screening of the matches in the pubs required the copyright holder's authorisation.

However, the judge upheld the publicans' arguments under s.72(1)(c) CDPA which provides that the public showing of a broadcast does not infringe any copyright in any film included in the broadcast where the audience have not paid for admission.  On the facts, this provided a defence to the publicans as no entrance fee was required from their customers.

The judge recognised that Article 3 of the Copyright Directive did not permit a defence in these terms, but also acknowledged that s.72(1) gives effect to a separate EU Directive provision, Article 8(3) of the related Rights Directive.  Broadcasts are not in themselves copyright works (under the Berne Convention) but related rights; Article 8(3) lays down a right of communication of such works to the public if the communication is made against payment of an entrance fee.  In any event, the judge concluded, the wording of the defence in s.72(1)(c) is clear and unambiguous.

The defence in s.72(1) also applies to sound recordings as well as films.  As regards the FAPL anthem, the judge noted in his reasons for not granting an injunction in FAPL's favour, that some of the defendants had offered to undertake not to play the anthem out loud and QC Leisure had offered to undertake to tell its customers not to allow the anthem to be played out loud. The judge also made reference to the copyrights being used by FAPL as "ransom strips"; this will presumably apply (at least partly) to the graphics in which FAPL has copyright which are included in the broadcasts.  The judge stated he will separately issue a declaration as to the precise scope of copyright infringement.

As a result, FAPL will at most have only limited rights that it could enforce against publicans.  The High Court will also separately issue an order dismissing those causes of action that have failed and a declaration that the territorial restrictions in the licence agreements are void under EU competition law (albeit without prejudice to any rights of FAPL in respect of copyright infringement).  The judge also transferred the case to the Patents County Court for purposes of an enquiry or account of any damages due.

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