In Football Association Premier League Ltd v QC Leisure  EWHC 108 (Ch) Lord Justice Kitchin has now accepted that the Defendant publicans communicated copyright works contained in foreign broadcasts of Premier League matches to the public, following the Court of Justice of the European Union (CJEU) ruling to that effect in October 2011. However, in relation to the lawfulness of the Football Association Premier League’s licensing arrangements, Kitchin LJ was minded to grant a declaration to reflect the ruling of the CJEU that the agreements constituted a restriction on competition prohibited by Article 101 TFEU.
Two cases were referred to the CJEU, one of which was a civil action against a number of publicans and their suppliers of foreign decoder cards and set top boxes. The main issues before Kitchin LJ on resumption of the civil case were whether, in the light of the CJEU judgment, any of the Defendants had communicated any of the FAPL’s copyright works to the public contrary to Section 20 of the Copyright Designs and Patents Act 1988 (the CDPA) and, if so, whether they had a defence under Section 72 of the CDPA.
Kitchin LJ acknowledged that the CJEU had made it unequivocally clear that publicans are communicating to the public FAPL’s copyright in its anthem and logo when they screen live Premier League matches broadcast on foreign channels in their pubs. Consequently, the Defendants were “transmitting” FAPL’s relevant copyright works, including its artistic works, to a “new public” contrary to Section 20 CDPA.
As for Section 72, Kitchin LJ noted that Section 72(1)(c) states that the free playing in public of a broadcast does not infringe “any” copyright in the broadcast or any “film included in it”. He therefore concluded that since members of the public had not paid for admission, the publicans had a complete defence to the allegation of infringement of FAPL’s copyright.
As to remedies, Kitchin LJ considered it “highly desirable” that he should declare the scope of copyright infringement limited to acts of infringement of specific works established against each Defendant. He noted, however, that some of the Defendants were no longer in business and that others, in respect of the playing of the anthem, had offered to undertake not to play it out loud and to take appropriate steps to ensure that was the case. In this respect Kitchin LJ was disposed to accept an undertaking in lieu of an injunction. He also considered that any injunction “must be formulated with precision and identify the works in respect of which infringement has been found”.
Kitchin LJ also considered that justice would be achieved by the grant of a declaration that the relevant obligations in FAPL’s licences with foreign broadcasters in this case constituted a restriction on competition prohibited by Article 101 TFEU. They are therefore void to the extent that such obligations prohibited the Greek broadcaster from supplying satellite decoder cards for use in the United Kingdom.
The result of this judgment is that the FAPL is nearer to its original goal, but one can question the cost at which it has been achieved. On a practical level, there is likely to be some discussion of the significance of Kitchin LJ making a declaration under Article 101 TFEU, although this simply reflects the ruling of the CJEU. How the FAPL intends to go about licensing rights in its live Premier League broadcasts in light of this is not yet apparent.
From the point of view of the publicans, the Section 72 defence, which would involve turning the sound down and switching off coverage during half time, presumably ensures that some of the copyright works (in particular the musical works) are not infringed. Unfortunately, Section 72 is by no means a defence to all infringement, and there is no obvious way to avoid infringement by showing the graphics and logos featured in the broadcasts.