IP, Technology & Data

Last autumn the European Court of Justice (“ECJ”) responded to questions from the UK High Court about two cases regarding the use of foreign decoder cards by UK pubs to screen English Premier League Football matches: Football Association Premier League v QC Leisure and Others (a civil claim by the FA Premier League, Sky and others concerning the legality of importing foreign decoders) and Karen Murphy v Media Protection Services (concerning the eponymous Karen Murphy using a Greek decoder in her Portsmouth pub, because subscribing to a Greek broadcaster is cheaper than subscribing to the UK rights-holder Sky).

The ECJ decided that national legislation banning the use of overseas (non-UK, but EU supplied) decoders amounted to an unlawful restriction on competition, and it was probable that only certain elements of Sky’s broadcast of match footage was protectable by copyright.

The uncertainty on the copyright point led me to name my blog about the saga “What Happens Next?”

What Happened Next!
Football Association Premier League v QC Leisure and Others was decided on the 3rd February, with Kitchin LJ stating: “the showing or playing of a broadcast in a public house to members of the public who have not paid for admission does not infringe any copyright in any film included in the broadcast.”

Kitchin LJ acknowledged that copyright in artistic works broadcast along with the film (the match footage) might still be infringed, particularly the “FA premier league anthem”, but generally seemed quite sceptical about the possibility of this occurring – provided landlords kept the sound turned down. Further, by transferring the cases to the Patents County Court (which traditionally deals with lower value claims), Kitchin LJ also implied that the Football Association Premier League (“FAPL”) might not see much in the way of damages, or an account of profits, for any infringement.

As for Karen Murphy, on Friday morning her conviction under s.297(1) of the Copyright, Designs and Patents Act (for dishonestly receiving a broadcast with intent to avoid payment) was quashed. (Murphy was originally prosecuted by Portsmouth magistrates, and the conviction was upheld by the Crown Court. She appealed to the High Court, which had stayed the proceedings with the referral to the ECJ.)

Stanley Burnton LJ made clear that this judgment does not go so far as effectively repealing s.297(1) – the offence under s.297(1) still applies in the case of:

  • broadcasts from broadcasters outwith the EU (eg Albania or Qatar – because the judgement is about enabling cross-EU provision of services and ensuring the EU isn’t partitioned – it’s not about permitting any broadcast from anywhere); and
  • cases in which a decoder has “fallen off the back of a lorry” (see for example the recent prosecution of Essex landlord Frederick Young, who was ordered to pay more than £19,000 in fines and costs this month after being convicted of screening matches via Sky Sports without a commercial viewing agreement).

What does all this mean for pub landlords?
The FAPL has issued a bullish statement which sets out its intent to pursue pub landlords for copyright infringement. The mention of “criminal penalties” is arguably melodramatic as counsel involved in the Karen Murphy case have actually had difficulty deciding if they are involved in a civil or criminal case (the point is relevant to which party will pay costs, and remains outstanding).

Furthermore, when the FAPL follows the referral in Football Association Premier League v QC Leisure and Others and visits the Patents County Court, what value is it actually going to try and place on a piece of music and some computer graphics, all of which are arguably incidental to the film (match footage) being broadcast? Prior to widespread action, the FAPL will surely want to find out the scale of damages it is entitled to at the Patents County Court. I am not sure how long this referral will take.

All this means that, provided a landlord is using an EU decoder of some description, the consequences very much remain to be seen. Perhaps the best way to summarise the current situation is to borrow some football terminology:

  1. Win – Use a decoder supplied by Sky
  2. Lose – Use a decoder without paying for it, or a decoder obtained from/that accesses the feed of a non-EU rights holder
  3. Draw – Use a decoder supplied by a EU (but non-UK) rights-holder

Can we ultimately expect to see the Premier League review how it distributes broadcast rights in Europe, or Sky reduce its UK subscriptions to bring them more in line with European providers? I wouldn’t entirely be surprised.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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