The fight by pub landlords to get the legal right to use foreign decoders to screen FA Premier League (FAPL) matches without infringing copyright took another step forward last week.
The latest Chancery Court judgment was handed down on Friday following clarification from the Court of Justice of the European Union (CJEU) over several questions regarding intellectual property rights.
Many will remember the tale of the pub landlord, Karen Murphy, who took on the might of the FAPL after she was ordered to pay nearly £8,000 in fines and costs for using a Greek decoder in her Portsmouth pub to bypass controls over match screening. She won her battle in October 2011 after the European Court of Justice (ECJ) said laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services.
Nevertheless, the CJEU also concluded that the screenings of matches in pubs was a “communication to the public” within the meaning of the EU Copyright Directive (Article 3(1)). This meant that the FAPL, as copyright holder, had a right to authorise and to require payment for the screenings.
Her case was joined with another, FA Premier League v QC Leisure, and this latest judgment concerned how the CJEU judgment should be applied in that case. In particular Lord Justice Kitchin examined the Copyright Designs and Patents Act 1988 (CPDA) and where it could be applied to the case.
Ruling, Kitchin LJ said the act was in line with the provisions of Article 3 of the Copyright Directive, giving copyright holders the right to authorise communications to the public. The judge applied section 20 of the CDPA in favour of FAPL as copyright holder, meaning that the screening of the matches in the pubs required the copyright holder’s authorisation.
Yet it was not all bad news for QC Leisure. The judge agreed with the defendant that the public showing of a broadcast does not infringe any copyright in any film included in the broadcast where the audience have not paid for admission. On the facts, this provided a defence to the publicans as no entrance fee was required from their customers.
The same defence can be applied to sound recordings as well as films.
With regards to injunctive relief sought by the claimants the defendants contended that this was tantamount to “ransom strips”. The judgment stated: “The defendants fear that the claimants will attempt to use any injunction granted by this court to convince the public that they have succeeded and can use their copyright to prevent the trade in and use of decoder cards from other Member States. They have also expressed a concern that many of the works relied upon have never properly been identified.”
The judge refused the application and stated that he would separately issue a declaration as to the precise scope of copyright infringement.
It means that the FAPL will have limited rights when it comes to enforcing copyright infringements against pub landlords. It is an important decision and one which brings to an end years of legal battles for the FA.