Over the past couple of years I have written periodic updates regarding the rights of English (or English-based) pub landlords to use “foreign” decoders to screen football matches in their pubs. Following the European Court of Justice (“ECJ”)’s decision as reported in Football Association Premier League v QC Leisure, in my post from last February I offered this summary of the state of play:
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… 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:
- Win – Use a decoder supplied by Sky
- Lose – Use a decoder without paying for it, or a decoder obtained from/that accesses the feed of a non-EU rights holder
- Draw – Use a decoder supplied by a EU (but non-UK) rights-holder
A new development in the pub landlords v football rights holders battle emerged on Monday, when it was reported that the Scottish Premier League (SPL) is facing a £1.7m damages claim over its legal bid to stop a pub group screening live matches via a Polish broadcaster. The case in question is The Scottish Premier League Limited v Lisini Pub Management Company Limited.
The background of the case
The story starts way back in 2006, when new Rangers boss and “fitness fanatic” Paul Le Guen was at war with Barry Ferguson, and present-day SPL player of the year Charlie Mulgrew was being “made into a man” (and what a hunky one!) at Wolves.
The SPL took proceedings back in against Lisini Pub Management Co Ltd for unlawful broadcasts of Celtic games in autumn 2006 using a broadcast signal from Poland. At the start of 2007 Lisini signed an undertaking saying that they would stop using foreign decoders. They then used a Polish decoder to screen a match in April 2007. The SPL then obtained interdict to prevent any more use of foreign decoders. And the case was then sisted to see what the ECJ had to say about the use of decoders supplied by EU rights-holders.
Of course, as described above, the ECJ decided that the use of foreign decoders was probably OK, and Lisini Pub Management Co Ltd is now counterclaiming against the SPL, seeking damages of £1,761,749.
In the Outer House of the Court of Session Lord Woolman refused to dismiss Lisini’s counterclaim, concluding:
In my view the English Premier league case has an important bearing on the present action. The material facts are virtually identical. The ECJ gave clear answers to the precise questions referred to it. Its decision means that subscribers in member states are entitled to access broadcast signals from other member states. An EC citizen living in (say) Germany should not be prevented from obtaining a signal from Sky, BBC, RAI, Nova or Polsat.
The SPL sought to argue that the ECJ arrived at its conclusions without any detailed investigation of whether banning the use of overseas (non-UK, but EU supplied) decoders would actually have an anti-competitive effect on the market for live football broadcasts. Lord Woolman found this argument “unconvincing”.
What’s not reported amongst the “SPL face £1.7m claim” headlines is that I think Lisini will have to work quite hard to actually prove such a huge loss. It will be interesting to see how they reach that figure – it’s not exactly “small beer”.
On March 27, 2013