A publican has been granted permission to appeal a judgment for breach of copyright law for showing Premier League football matches using a foreign satellite card. The issue becomes more pertinent in light of the viewing rights for 2016-2019 being sold for over £5bn.
With the FA Premier League (FAPL) recently selling the viewing rights to arguably the worlds most watched, and commercially attractive league, for a combined £5.13bn; ensuring that pubs, clubs and individuals are paying for the services in the ‘correct’ manner will no doubt be high on their agenda.
Selling the viewing rights at such a high price can only be justified if the purchasers, Sky and BT, feel they are getting value for money and are able to convert this colossal fee into profit through their subscription packages. This article will examine some of the ways publicans (Karen Murphy and Anthony Luxton have sought to avoid subscription fees, which many argue are too expensive, and how the FAPL have taken action to combat this.
When Portsmouth landlady Karen Murphy was convicted under section 297(1) CDPA for dishonestly receiving satellite broadcasts using a Greek decoder in order to show FAPL games; many thought that would be the end of the matter and the deterrent of criminal proceedings would ensure all pubs purchased the applicable UK subscription.
Yet, upon appeal to the High Court this case, and the case of Football Association Premier League Ltd & others vs QC Leisure & Others, were referred to the European Court of Justice (ECJ), and Mrs Murphy had her conviction quashed.
In the Karen Murphy case the ECJ held that:
- Territorial restrictions preventing the use of foreign decoder cards was not compatible with Article 56 of the Treaty on the Functioning of the European Union (TFEU); and
- As a result, no intent could be established in Mrs Murphy’s actions and the offences under the Copyright, Designs and Patents Act 1988 (CDPA) could not be used to prevent the screening of football matches using a foreign decoder card.
When the matter returned to the High Court, her conviction was quashed and it appeared as though David had conquered Goliath. However, after the initial excitement, surrounding an individual tackling one of the worlds most recognised brands and winning, had died down; there was soon a realisation that this was in fact a hollow victory and the subscription fees in this territory could not be circumvented quite as easily.
The hollowness of the victory was down to the second case the English Courts referred to the ECJ, QC Leisure & Others. Although there were many similarities between the two cases, QC Leisure can be distinguished in a number of ways. It was submitted that QC Leisure had infringed FAPL’s copyright in a whole host of works including video, artistic and musical works and sound recordings.
FAPL argued that these copyrights had been infringed in a number of ways, including:
- Copying under sections 16(1)(a) and 17 of CDPA;
- Performing, showing or playing in public under sections 16(1)(c) and 19 of CDPA; and
- Communicating to the public under sections 16(1)(d) and 20 of CDPA.
In summary, the outcome of the QC Leisure case was generally favourable toward the FAPL. It was held that publicans who used foreign decoder cards to screen foreign satellite broadcasts of Premier League games to the public will be infringing copyright. However this was only in respect of the logos, graphics and accompanying music. Section 72 CDPA provided a defence to the videos themselves, so long as no admission was charged to the viewing audience. These copyright infringements would also not be applicable to the private user as there is no communication to the public.
Based on this decision, it would appear that in order for the FAPL to ensure subscription packages were purchased in the correct manner; it simply needed to include as many logos and sounds into their live feeds as possible so as to make it almost impossible to show a video without breaching some form of copyright owned by the FAPL.
On 30 January 2014, Mr Luxton, Landlord of the Rhyddings pub in Swansea, was convicted, by way of summary judgment, for breaching the FAPL’s copyright in the on screen graphics and logos displayed during live feeds of their matches.
The proceedings were brought by the FAPL on essentially the same grounds that brought success in the QC Leisure case, a breach of their copyright. Mr Luxton’s defence was based largely on the idea that, by FAPL permitting foreign broadcasters within the EU to transmit their broadcast across borders, then the UK consumer in a pub was not a “new” public and therefore there was no breach of copyright.
It was argued that the present proceedings were an illicit attempt by the FAPL to prevent Mr Luxton from using a foreign decoder to receive broadcasts which was pursuant to a covert understanding between FAPL and their UK licensees. Mr Luxton asserted that such mutual understandings were in breach of Article 101 TFEU and/or domestic competition laws.
Dismissing his defence, Mrs Justice Rose held that the fact the alleged illegality by FAPL is now said to be operating covertly does not distinguish it from the QC Leisure case. She found this case to be “on all fours” with QC Leisure and the relief sought was exactly the same.
Mrs Justice Rose reiterated that QC Leisure made it clear that there is a communication to the public when a publican shows matches on their premises, and the audience are held to be a “new” public. Although it was held in QC that absolute territorial restrictions in the licences were illegal, this was without prejudice to any copyright infringement.
Mrs Justice Rose summarily found in favour of FAPL and held that it does have a lawful right to prevent unauthorised communication of its copyright.
In February 2015, Mr Luxton was granted permission to appeal. It will be interesting to see what arguments are raised in defence and the court’s approach to them. It could be an opportunity for the court to give a definitive clarification on the matter setting out the exact parameters under which the FAPL’s copyright will be breached; conversely it could reverse the decision and bring the whole matter to life again.
Summary of the two cases
Although the outcome of the Murphy and QC cases was mixed, it appeared that the FAPL had an avenue to pursue anyone in the UK who tried to avoid the subscription fees required to show their games in pubs and clubs. The defeat suffered at the hands of Mrs Murphy was more of a moral victory for the publicans, rather than anything that carried any great significance. The avenue provided to FAPL by QC outlined a more secure and effective route of bringing an action against landlords who believed paying for the cost of a UK subscription was not in the best interests of the business.
However, with Mr Luxton being given permission to appeal, it remains to be seen what approach the court will take. Whatever the outcome of the Luxton appeal, it is expected that the FAPL will find a way to ensure that its brand is protected and that actions for breach of copyright will remain the most effective way to do it. The FAPL is a business which has a clear policy when dealing with infringement of its intellectual property rights. It acknowledges that the expense incurred in protecting its brand and enforcing its rights is necessary and proportionate.
If you are a pub or club owner and require advice on this subject then please contact or dedicated intellectual property team.
Authors: Andrew McGregor and Chris BrownThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.