The Court of Appeal has recently handed down judgment in the latest in a line of cases relating to the showing of Premier League football matches in UK pubs using foreign satellite decoder cards. The Court of Appeal found in favour of the Premier League, confirming that unauthorised use of a decoder card licensed for domestic premises only amounted to copyright infringement and that no defence applied based on free movement principles and the alleged unavailability of foreign commercial decoders.

The Murphy and QC Leisure decisions

Readers will no doubt be familiar with Karen Murphy, the publican who in many respects became the ‘face’ of the copyright infringement cases originally brought by the Premier League in 2008. Football Association Premier League Limited (“FAPL”) runs the English Premier League. Premier League matches are filmed and packaged in a way that enables FAPL to license broadcast rights to broadcasters worldwide, generating billions in revenue. FAPL licenses these rights on a territorial basis and subscription prices for customers inevitably vary between EU Member states, making certain foreign broadcast subscriptions more attractive.

In the Murphy and QC Leisure cases (copyright claims brought by FAPL against various publicans and broadcasters who were using foreign decoder cards with cheaper subscriptions than the UK licensee, Sky), following a preliminary reference to the European Court of Justice, the High Court found that FAPL’s licensing agreements breached the free movement principles enshrined in Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) but this “Article 101 declaration” was made “without prejudice to” FAPL’s rights to enforce its copyright, and, it was held, FAPL had enforceable copyrights in relation to various elements of the broadcasts of its matches (including its logos, anthem, graphics, etc.), which had been unlawfully communicated to the public by the publicans.

Mr Luxton – domestic versus commercial use

In 2014, along came Mr Luxton, a Swansea publican who had purchased a decoder card licensed for domestic premises in Denmark. He used this to show Premier League matches in his pub in Swansea. FAPL brought a claim against Mr Luxton for copyright infringement, and an application for summary judgment on the basis that Mr Luxton had no prospect of successfully defending the claim. Mr Luxton, however, argued that the FAPL’s true objective in bringing the proceedings was to prevent the use of foreign decoder cards (in contravention of the Article 101 limb of the QC Leisure decision). He argued that he had been unable to obtain a commercial decoder card from another member state, due to the restrictive terms of the FAPL licensing agreements which meant that licensees were still behaving as though they were prohibited from supplying decoder cards across Member State borders.

The High Court found in favour of the Premier League. Its decision turned, again, on the copyright limb of QC Leisure, due to the fact that Mr Luxton was using a domestic licence for commercial purposes (for a more detailed analysis of that decision, see here). There was not a sufficient nexus between the alleged continuing territorial licensing arrangements of FAPL which prevented Mr Luxton being supplied with a foreign commercial decoder card, and Mr Luxton’s infringing act in using a domestic decoder card; if there was, Rose J considered that QC Leisure itself would have been decided differently.

Mr Luxton’s appeal

Mr Luxton appealed the High Court’s decision, arguing that he had a reasonable prospect of success, based on two “Euro defences” and the well-recognised premise that, in some circumstances, an intellectual property right may become unenforceable because the motive behind its enforcement is division of the EU market, in breach of free movement principles. He argued:

  1. the proceedings brought by FAPL were really an illicit attempt to preclude the use of foreign decoder cards; and
  1. there was a sufficient connection between the FAPL’s illegal licensing arrangements and the infringement complained of to prevent FAPL from enforcing its copyright in this way.

FAPL contended that the first point should not succeed, as the consequence would be that FAPL was prevented from ever obtaining summary judgment in clear cases of copyright infringement where domestic decoder cards were being used for commercial purposes. Further, the second point should fail because FAPL’s licensing agreements were not the effective cause of Mr Luxton’s infringing act, which was the unauthorised use of a domestic card for commercial purposes.

The Court of Appeal agreed with FAPL, though it disagreed with the High Court that the QC Leisure decision had conclusively decided the specific issues in the Luxton case. It found, firstly, that FAPL’s proceedings to enforce its copyright could not properly be described as an “illicit attempt” to preclude the use of foreign decoder cards, as the right upon which FAPL relied did not depend upon the territory in which the act complained of was occurred but rather the type of use that was being made (i.e. commercial use of a domestic subscription). Secondly, the Court held that it could not be said “except perhaps in the loosest possible sense” that Mr Luxton’s infringing act was the result of FAPL’s licensing agreements, as there was a clear separation between, on the one hand, FAPL’s licences and, on the one hand, its enforcement of a lawful right.

What does this mean for publicans, the Premier League and other rightsholders?

The Court of Appeal has confirmed the existing position, namely that FAPL can legitimately rely on its copyright to prevent certain uses of unauthorised decoder cards. However, it is interesting to note that FAPL accepted that the Luxton hearing should proceed on the assumption that there was at least an arguable case that licensees are still behaving as though they are prohibited from supplying commercial decoder cards to other EU Member States outside. There may yet be circumstances in which a successful challenge could be brought within the Article 101 limb of the QC Leisure decision. In the meantime, however, FAPL will no doubt welcome the Court of Appeal’s confirmation of the legitimacy of its copyright claim and the availability of summary judgment in cases centred on clear misuse of a domestic subscription for commercial purposes. This is important as, had a different decision been made in this respect, the concern for FAPL, and potentially other copyright owners, would be the possible devaluing of their rights due to the need to go to great expense and litigation to combat clear infringements.