October 13, 2011

Premiership Football in Pubs – An Away Win or Score Draw?

Last week (on 5th October) the European Court ruled that the FA’s licence condition that satellite broadcasters do not supply foreign decoder cards was contrary to European Law.

Background Facts
The Football Association Premier League (“FAPL”) runs the English Premier League (“PL”).  Each match is filmed and broadcasting rights licensed to foreign broadcasters.  The broadcasts are made by encrypted satellite signals and the broadcasters are supplied with decoder cards for their customers for use in their respective countries in order to receive the broadcasts.

FAPL grants exclusive licences for the countries of each of the foreign broadcasters.  To protect the exclusivity foreign broadcasters are required by contract to prevent their broadcasts from being capable of viewing from outside the licensed country.  In particular, and relevant to the case, foreign broadcasters are not allowed to supply non-UK decoder cards for use in the UK.

In breach of the FAPL Licences some pubs in the UK were supplied with Greek satellite decoder cards for live transmissions of PL matches.

Background Law
Article 56 of the Treaty on the Functioning of the European Union (“TFEU”) prohibits restrictions on the freedom of nationals established in one EU member state to provide services for persons in another member state.

Article 101(1) TFEU prohibits all agreements between undertakings (including companies), decisions by associations of undertakings and concerted practices which may effect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the EU.

Under the Conditional Access Directive member states must prohibit, in their territory, various activities, including the manufacture, import, distribution, sale or possession for commercial purposes of “elicit devices”. This means any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider.  Member states may not restrict the provision of protected services that originate in another member state, or restrict the free movement of conditional-access devices, for reasons falling within the field coordinated by the Directive.

The Copyright Directive requires member states to provide authors with the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means in any form, in whole or in part, of their works.  The Copyright Directive introduced the right of communication to the public.

Copyright Theft?
Section 297(1) of the Copyright Designs and Patents Act 1988 (“CDPA”) provides that an offence is committed where a person dishonestly receives a programme included in a broadcasting service provided from a place in the UK with intent to avoid payment of any charge applicable to the reception of the programme.  By Section 298 of CDPA the remedies are the same as those for copyright infringement, such as damages, delivery up or seizure of articles and so forth.

The FAPL brought test cases against the suppliers to pubs of the Greek satellite decoder cards that enabled the pubs to show programmes of foreign broadcasters.  FAPL also sued the pubs that screened the matches.  FAPL claimed that there had been infringement of Section 298 of CDPA and there had been infringement of various copyright works within the broadcasts.  In a related case, FAPL brought a private prosecution against a publican, Ms Karen Murphy, and her conviction was appealed to the High Court. All cases were referred to the European Court.

The Court held that the licences issued by FAPL did contravene the above European Treaty. The prevention of the free movement of decoder cards within the EU was accordingly contrary to European Law. The Court once again upheld the interests of competition within European Union borders.   To the relief of Ms Murphy the Court also held that any law prohibiting the importation, sale and use of foreign decoder cards was unjustified.

The Defendants in the cases did not have it all their own way.  The decisions on copyright infringement went against them.  There is no copyright in a live sporting event but copyright works are featured in the broadcast, such as opening video sequences, the Premier League anthem and various graphics.  The Court ruled that the transmission of broadcasts constituted a communication to the public and so infringed these copyrights.  While the Judgment appears to mean that individuals in the UK can buy decoder cards from other EU member states in order to access Premier League matches for private use, it does not mean that pub landlords can use the cards to show games in their pubs so long as the FAPL ensures that its match coverage includes sufficient copyright protected elements.

“Its all Greek to me”.  While the access of Premier League matches via a Greek satellite decoder may enable private viewing with Greek commentary, the ruling is clear enough in that if a pub or club or any other showing of Premier League matches to the public were effected by use of a foreign satellite decoder FAPL copyright material would be infringed and so the party responsible will be breaking the law.  The result is something of a score draw but in practical terms for the continued protection of UK revenue to FAPL the cases are unlikely to bring about any changes.

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