Case of the week: IP

3 February 2012

The transmission of football matches via television screens and speakers to customers in public houses had infringed copyrights because they had communicated them to the public via electronic transmission within the meaning of the Copyright, Designs and Patents Act 1988 s.20, which effectively transposed Directive 2001/29.

Judgment accordingly

There were three conjoined actions against the defendants, which included publicans, for alleged infringement of the FAPL’s copyrights.

The FAPL alleged that the defendants had communicated its copyright to the public contrary to s.20 by transmitting its broadcasts via television screens and speakers to customers in their public houses.

The judge referred to the European Court of Justice (ECJ) the question whether “communication to the public” in art.3 had to be interpreted as covering transmission of the broadcast works via television screens and speakers to customers in a pub. The ECJ held that it did have to be so interpreted.

Article 5(3)(o) of the directive allowed EU member states to provide for exceptions or limitations to the right to prohibit communication to the public of their works. Under s.72 of the 1988 act, copyright in a broadcast was not infringed where the audience had not paid admission to view or hear the broadcast.

The issues for determination were whether the defendants had communicated the FAPL’s copyright works to the public contrary to s.20 and, if so, whether a defence was available because the public had not been charged to receive the communications.

The defendants submitted that it was impossible to interpret “communication to the public by electronic transmission” as extending to the act of receiving a broadcast by electronic means and then showing it on a television screen in public. Further, that

when the public had not paid for admission, the act of showing in public a broadcast did not infringe any copyright in any film included.

Judgment accordingly

S.20 was an effective transposition of art.3 into national law. In words reflecting the explanatory note to the 2003 regulations it defined “communication to the public” as communication to the public by electronic transmission.

That phrase was entirely apt to encompass the activities of the publicans: they were transmitting the FAPL’s relevant copyright works, to a new public, and doing

so by electronic means, as they were using electronic instruments such as televisions and speakers.

Insofar as there might be any doubt about that interpretation, there was no difficulty in a conforming interpretation of s.20 and in meeting the court’s obligation to interpret s.20 in light of the wording and purpose of the directive to achieve the result pursued by it.

The wording of s.72(1)(c) was clear and unambiguous. Parliament had intended to allow films included in broadcasts to be seen and heard in pubs without the consent of the owners of the copyright in those films.

The 2003 regulations had amended s.72, but their failure to amend s.72(1)(c) had to be regarded as a conclusive indication of a legislative intention to maintain the full breadth of protection against film copyright. Interpreting s.72 as limited to analogue uses involved recasting s.72 in a way that largely removed the protection it appeared to provide.

 

Commentary

Eleanor Temple

The decision in this case permits the watching of Premier League matches and other televised sports using subscriptions to satellite feeds from other EU member states as long as this does not breach the copyright of the FAPL.

Naturally, this could have huge and potentially disastrous revenue implications for football and other televised sports.

The Premier League could be forced to establish its own television channel to screen matches so that it avoids the sale of rights to satellite providers who then resell viewing rights to consumers.

Alternatively, it could restrict the issue of licences to those member states that generate high levels of income while removing licences from countries such as Greece that produce lesser income streams.

The Premier League could also issue non-exclusive licences in order to get around the European Court of Justice ruling, although this would again affect its revenue as licence rights would inevitability attract a lesser value.

It is hard to disagree with the prediction that, as a result of the decision in this case, price competition and a reduction in televised rights revenue could destroy the financial viability of many football clubs.

Rights-holder pricing and the televised transmission of football and sports generally within the UK could be changed massively and, for an industry that is still over-reliant on this type of income, it is hard to imagine how it will be replaced.

Eleanor Temple, Kings Chambers

For the claimants

l (1) Football Association Premier League Ltd; (2) NetMed Hellas SA; (3) Multichoice Hellas SA: James Mellor QC, Charlotte May and James Whyte, 8 New Square; Helen Davies QC, Brick Court Chambers; Kate Vernon, partner, DLA Piper.

l (5) British Sky Broadcasting Ltd: James Flynn QC, Brick Court Chambers; Antonio Bavasso, partner, Allen & Overy

 

For the defendants

l(1) QC Leisure on behalf of Richardson; (2) Raval; (3) Greenslade; (4) SR Leisure Ltd: Martin Howe QC, 8 New Square; Andrew Norris and Thomas St Quintin, Hogarth Chambers; John Cronin, Smithfield Partners

(5) AV Station plc; (6) Malcolm Chamberlain; (7) Michael Madden; (9) Philip George Charles Houghton;  (10) Derek Owen: Counsel as above instructed by Paul Dixon, partner, Molesworths Bright Clegg

 

For the intervener, the Secretary of State for Business, Innovation and Skills

Sarah Lee, Brick Court Chambers; Simon Malynicz, 3 New Square, instructed by the Treasury Solicitor