Précis  - The High Court has found that the unauthorised transmission by pubs of live Premier League matches using foreign decoder cards is an infringement of UK copyright law, but has held that there is a defence in relation to certain protected works where pubs do not charge an admission fee.

What?  The High Court ruled on 3 February 2012 on the supply and use of foreign decoder cards to broadcast live Premier League football matches (Football Association Premier League Ltd & others v QC Leisure & others [2012] EWHC 108).

So what? Licences to broadcast the Premier League matches are granted by the Football Association Premier League (“FAPL”) on a territorial basis, carved up along national boundaries. This judgement makes it clear that prohibiting the supply and use of decoder cards outside exclusive territories restricts competition and is therefore unlawful.

The FAPL grants exclusive, territorial licences to the broadcast rights of each Premier League football match to foreign broadcasters. The broadcasts are encrypted and sent via satellite, and the broadcasters supply decoder cards to their customers in their territory which allow their customers to receive the broadcasts. This exclusivity arrangement is protected by the inclusion of a term in the licence between FAPL and the broadcasters which prevents their decoders from being supplied outside their territory.

However, several public houses in the UK bought decoders from outside the UK which allowed them to broadcast Premier League matches shown in non-UK territories, avoiding the need to secure a licence from the exclusive UK broadcaster.

As a result, the FAPL brought proceedings against the defendants, arguing that they had infringed FAPL’s copyright in certain works within the broadcasts by:

  1. creating copies of the works in the internal operation of the satellite decoder;
  2. displaying the works on screen; and
  3. communicating them to the public.

The FAPL also sought a declaration of copyright infringement in relation to the broadcasts and an injunction restraining the defendants from further infringements. The FAPL claimed that the copyright works within the broadcasts include the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics.

Under Article 3(1) of Directive 2001/29/EC, Member States must provide authors with the exclusive right to authorise or prohibit communication to the public of their works.  The defendants argued that their actions were permitted under certain EU principles of free movement of goods and services, and that screening the Premier League football matches did not constitute “communication to the public”.

This question was referred in 2008 to the European Court of Justice (“ECJ”) which ruled on 4 October 2011 that “communication to the public” under Article 3(1) of Directive 2001/29/EC (transposed into UK law by section 20 of the Copyright, Designs and Patents Act 1988 (“CDPA”)) included the transmission of broadcast works via a television screen and speakers, such as those in public houses.

The High Court:

  • ruled that the broadcasts did constitute “communication to the public” under section 20 CDPA (following the ECJ’s wide interpretation of Article 3(1));
  • found that the defendants had a defence to this under section 72 CDPA because the screenings of football matches in public houses were to members of the public who had not paid for admission, and so there was no infringement of any copyright in any film included in the broadcast (but there may still have been infringement of copyright works within the broadcast such as the Premier League Anthem and logos); and
  • agreed to grant the declaration of copyright infringement, but only on the basis that the declaration be limited to acts of infringement of specific works. The FAPL’s application for an injunction was rejected as the Court ruled that the defendants must be entitled to carry on their business in a way that avoided infringement of FAPL’s copyright works, which the defendants undertook to do.

The result of this judgement is that whilst FAPL has, in principle, been successful in its copyright infringement claim, the defendants (and other public houses) may continue to use foreign decoder cards to broadcast foreign transmissions of Premier League matches provided that the copyright works (Premier League Anthem and logos etc) are not screened. This is therefore something of a pyrrhic victory for the FAPL.

However, it is difficult to see how the defendants (and other public houses) will ensure that no further incidents of copyright infringement occur, as it may be difficult to separate out the copyright works from non-copyright works during a live broadcast of a Premier League match.

It remains to be seen whether FAPL will seek a right to appeal to the Court of Appeal.