The simple charms involved in watching your favourite team compete in the Premier League while enjoying a drink in your local pub have been the subject of a recent High Court decision. How could this be possible? The answer involves examining how your local pub has chosen to receive and broadcast live Premier League matches – and specifically whether this involves the use of foreign decoder cards to access foreign broadcasts of those matches.
The FA Premier League organises the filming of Premier League matches and licenses the rights to broadcast them on a territorial basis for specific periods of time. For example, BSkyB is currently the exclusive licensee for live broadcasts of matches in the UK. The FA Premier League argues that exclusivity is necessary in order to realise the optimum commercial value of the rights since broadcasters are prepared to pay a premium in order to acquire exclusivity.
In order to show Premier League matches your local pub may have taken a subscription to BSkyB. Alternatively, your pub may have purchased a foreign decoder box and decoder card from abroad enabling it to show a foreign broadcaster’s programming, which is generally a much more cost-efficient option for the pub. The case in question (FA Premier League v QC Leisure and others) concerned the consequences of choosing the foreign decoder option.
The FA Premier League brought test actions against importers and suppliers of decoder cards and boxes to pubs in the UK and against various pubs at which live Premier League matches were screened using those decoder cards. The pubs in question had avoided considerable expense by purchasing decoder equipment from Greece. The case raised a host of tangled questions including the interaction of various EC directives, the nature of the rights arising in the broadcasts, the alleged infringement of such rights and the impact of European Community provisions on the free movement of goods and services and competition law.
The FA Premier League produces a “World Feed” output of its matches which in addition to the recording of the relevant match itself contains various logos, video sequences, on-screen graphics, music and English commentary. The World Feed is then encrypted and transmitted by satellite to the foreign broadcaster which decrypts the World Feed to add its own logo and possibly some commentary. The signal is subsequently encrypted again and transmitted by the foreign broadcaster to its subscribers. The subscriber’s decoder box will decrypt the signal with the aid of a decoder card. The foreign broadcasters licensed by the FA Premier League agree not to authorise the viewing of any transmission outside the relevant territory and not to supply decoder cards for use outside the relevant territory.
The FA Premier League argued that the defendants’ actions in using non-UK decoder cards and boxes to screen live Premier League matches contravened a provision of the Copyright, Designs and Patents Act 1988 (“Act”) which gives the holders of rights in broadcasts similar rights and remedies in respect of illicit devices designed to circumvent conditional access technology (eg pirated decoders) as copyright owners have in respect of infringement of their copyright. This legislation stems from an EC Directive known as the Conditional Access Directive. For good measure the FA Premier League also argued that the defendants had infringed its copyright in various artistic and musical works, films and sound recordings.
One of the key elements of the case was whether decoder cards used by the defendants fell within the category of “illicit devices” defined in the Act and the Conditional Access Directive. The defendants argued that their use of decoder equipment in the UK (which had been legitimately purchased in another European member state) was perfectly lawful and that the term “illicit device” was limited to pirate or counterfeit decoders and did not extend to decoder equipment which had been lawfully manufactured and then parallel imported into the UK. The judge felt that this was a question for the European Court of Justice (“ECJ”) to decide, however the judge indicated he preferred the defendants’ arguments on this point.
As regards the general allegations of copyright infringement, the defendants relied as a general defence on an EC Directive known as the Satellite and Copyright Directive which stipulates that communication of a broadcast to the public is deemed to take place in the country from which the broadcast is made. Therefore, the defendants argued, the relevant country in this case was Greece, being the country from which the broadcast was made, and all that was relevant was whether the act of transmission in Greece was authorised. They argued that they could not infringe UK copyright law merely by receiving the broadcast in the UK. This was another issue which the judge felt he should refer to the ECJ.
On the particular questions of copyright infringement, the judge held that the copying of a film or broadcast in a decoder or on a TV screen did not amount to the copying of a substantial part of the relevant work since a few frames (which is all that is copied into a decoder at any one time) could not amount to a substantial part and as a result this activity did not amount to an infringement. However as regards artistic works (such as logos) which were reproduced in the decoder and on screen, there was copying although the defendants had a potential defence under certain provisions relating to transient/incidental copying which had been introduced by an EC Directive. Whether this defence did indeed apply was referred by the judge to the ECJ, although again the judge indicated that he preferred the defendants’ arguments.
As regards allegations that the defendants had infringed copyright by performing, playing or showing the broadcast in public, the judge noted that there was a general defence to infringement in respect of the free showing of the broadcasts but pointed out that, due to the wording of this defence, the playing of the Premier League anthem during the broadcast could infringe the musical copyright in that anthem. It is possible that a solution to this particular issue would be for a pub to mute the sound on its TV whenever the anthem is played.
The judge also considered the defendants’ argument as to whether the restriction on the circulation of authorised decoder cards (outside the particular territory agreed by foreign broadcasters) could be justified with regard to EC competition law. This question was also referred to the ECJ for consideration.
A decision from the ECJ on these points will be eagerly anticipated by the relevant parties and interested onlookers. The ECJ’s decision has the potential to dramatically affect the manner in which sports bodies exploit their TV rights. In addition, it may have a direct effect on the screening of Premier League matches in your local pub…