In its response to the Hargreaves Review of Intellectual Property, the government agreed with the review's central thesis: that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the United Kingdom. However, as work commences to see how far those exceptions can apply within that framework, the courts have been finding that some existing exceptions already go too far. Where they go beyond what is permitted, they are likely to be repealed. Little attention has yet been paid to this upcoming retrograde motion.

It began in June 2011 with the judgment in TVCatchup. That was (and still is) a case which, in essence, turns on whether the retransmission on the Internet of live UK public service broadcast television to online audiences within the United Kingdom infringes copyright in the broadcasts on the basis that the retransmission is a communication to a new public. This key question remains to be answered with the help of the European Court of Justice (ECJ), but the June 2011 judgment established a number of key points. First, if there is an infringement, the exception for the retransmission of wireless broadcasts in Section 73 of the Copyright, Designs and Patents Act provides a limited defence. Second, and more materially for present purposes, the exception applies to digital which goes beyond the analogue uses that are permitted by the EU framework (specifically, Article 5 of the EU Information Society Directive (2001/29/EC)). No amount of interpretative sophistry permitted by the principle established in Marleasing could rescue it. The exception goes beyond the boundaries set by the directive.

For the time being, digital retransmissions on the Internet and other cable-based systems of the main broadcast channels enjoy an exception from copyright. However, if public service broadcasters suffer loss as a result, they will no doubt consider making Francovich damages claims against the government for failure to transpose the directive into national law. The government, in turn, will undoubtedly consider its powers under the European Communities Act to repeal Section 73 rather promptly and thereby limit its liability.

In February 2012 Lord Justice Kitchin finished off FAPL v QC Leisure, a case that had broadcasting lawyers on their toes for years. The ECJ having replied to a number of questions that he had referred to it, the judge decided a number of issues left over from the trial in 2008. One of them concerned the showing of Premier League matches on television in a pub. If that was an infringement of the copyright in any film included in the broadcast, was it within the exception for the free public showing of broadcasts in Section 72 of the Copyright, Designs and Patents Act? Again, the exception went beyond the boundaries set by Article 5 of the directive - and in so clear a way that there was no scope for interpreting it down on the Marleasing basis.

Again for the time being, pubs will have a small shield against some of the copyright claims to which they are now exposed by showing programmes on their televisions (thanks to other parts of the case). If this means that the rights owners suffer loss, the government will again know to whom such rights owners are likely to turn. Therefore, it seems unlikely that the Section 72 exception will survive any longer than the Section 73 exception, at least in its present form.

The withdrawal of these exceptions will be a salutary reminder to those exploring ways of enlarging the present list of UK exceptions that the EU framework has teeth. It is part of a trend, as European law - in terms of day-to-day issues - increasingly sets the scene in broadcasting copyright and regulation.

For further information on this topic please contact Tony Ballard at Harbottle & Lewis LLP by telephone (+44 20 7667 5000), fax (+44 20 7667 5100) or email ([email protected]).