Court of Appeal copyright dispute ‘might never have arisen’ if parties had sought legal advice
Out-Law News | 09 Feb 2012 | 8:00 am | 6 min. read
However, in practice the landlords will find it difficult to show games without infringing the FAPL's copyrights due the fact that broadcasters usually associate graphics, logos and music with their coverage of games, a copyright expert has said.
Last week the High Court confirmed that showing FAPL matches on screens in pubs using foreign satellite decoders infringes the FAPL's film copyright, but said that landlords could rely on a specific defence in the UK's Copyright, Designs and Patents Act (CDPA) and would not be liable for infringing the copyright in the visual elements of the film and its soundtrack (such as live commentary and crowd noise) if it did not charge customers to enter the pub to watch the games.
The Court had previously determined that "the defence is limited to the free showing or playing in public of a broadcast, and certain sound recordings and films included in it" but that landlords would still be regarded as having infringed on the FAPL's rights if they showed logos, graphics and other ancillary copyright works contained in the broadcasts.
In its latest ruling the Court also determined that the FAPL 'anthem' that accompanies elements of broadcasters' coverage of matches was also outside the defence, meaning landlords that play broadcasts of the anthem out loud would be liable for copyright infringement.
The FAPL has sued some pub landlords claiming that they were liable for copyright infringement when they showed coverage of matches without having a legitimate licence to broadcast the games in the UK. The FAPL, the body which owns and runs the English football Premier League, is made up of its member football clubs and owns the rights to broadcast League games.
Broadcasters pay significant sums to be allowed to show the games, but the games are also filmed and packaged for foreign audiences. Broadcasters abroad pay to show those games. Companies such as Sky in the UK charge viewers to watch games, with subscriptions for pubs being significantly higher than those for households.
Some UK pubs have chosen to install foreign satellite decoders in order to transmit matches shown by foreign broadcasters rather than pay Sky. FAPL claimed that the activity infringes their copyright and that two companies providing the satellite decoders, QC Leisure (QC) and AV Station plc (AV), were also liable for that infringement. AV has subsequently gone out of business.
Lord Justice Kitchin previously referred questions relating to the FAPL's case to the European Court of Justice (ECJ).
That ECJ ruled that pub owners can use foreign decoders to show live Premier League football under EU free trade laws, and that some of the material contained in the broadcasts was copyright protected. Whilst live sporting events themselves are not protected by copyright, broadcasts of them and film, sound recordings, graphics, music and other features included within a broadcast are. The ECJ said landlords were responsible for "communicating [the material] to the public" when they showed the broadcasts on screens in pubs.
The ECJ also said that broadcasters and other rights holders cannot create licences for broadcasters that stop them selling their services to other EU countries because that is a breach of EU competition laws designed to maintain the single market.
In applying the ECJ's findings Lord Justice Kitchin ruled that pubs could legitimately show customers the raw broadcasts under the terms of the CDPA
The CDPA prohibits the unauthorised "communication to the public" of copyrighted works in "a literary, dramatic, musical or artistic work, sound recording or film, or broadcast", for example by means of a broadcast of a musical work shown in public. Lord Justice Kitchin found that showing a broadcast on a screen to customers in a pub amounted to communication to the public. It is also an infringement of the copyright in a literary, dramatic or musical work to show or play it in public, for example by broadcasting it without the consent of the owner of the copyright in the work. .
However, under Section 72 of the CDPA "the showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in the broadcast; any sound recording (except so far as it is an excepted sound recording) included in it; or any film included in it".
The High Court said that this exception to copyright infringement applied to pub landlords that show broadcasts of matches, but that because of amendments made to the Act's original wording, the defence did not extend to cover the pubs' showing or playing in public of the Premier League anthem. The defence applied only to the sound recording of the anthem, not the anthem as a musical work in itself.
"In my judgment [CDPA section] 72(1)(c) means what it says. 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," Lord Justice Kitchin said in his ruling.
However, because the judge had already ruled that the defence did not apply to underlying artistic works also broadcast landlords will not simply just be able to avoid liability by offering free entry and turning the sound down, said copyright law expert Kim Walker of Pinsent Masons, the law firm behind Out-Law.com.
"This ruling is not all good news for pub landlords as the judge has confirmed that the exemptions don’t apply to ancillary copyrights within the broadcast, such as logos, graphics, pre-recorded highlights from other matches and the music of the Premier League anthem," said Walker. "Landlords can try to stay within the exemptions by restricting what they show to the live play in each half, turning down the sound when the anthem is played and switching off at half time, to avoid showing graphics and half time highlights. It is likely to be risky however since graphics with match statistics are increasingly shown randomly by the broadcasters throughout the match, so staying within the exemptions will be tricky in practice unless pubs can get legitimate access to a clean feed of the broadcast."
Investigators had reported that four pubs had broadcast Premier League matches using foreign satellite decoders and had infringed on the FAPL's rights when the anthem was played out loud.
The judge confirmed that QC and AV were liable for authorising copyright infringement to the extent that it existed because the decoder cards they supplied were used for the purpose for which they were supplied – to decrypt the overseas broadcasts the pub landlords wanted to show.
However, Lord Justice Kitchin had previously complained about a "paucity of evidence" in relation to the alleged infringements by the pub landlords and had ruled that FAPL "simply have not made out their case that the anthem was played out loud" during the games the investigators had reported on. He said that he was not prepared to revisit that finding in his current ruling.
Lord Justice Kitchin did say though that the case should be referred to the Patents County Court to iron out what minor damages the landlords might be liable for. He said that he was "disposed to accept an undertaking to the court in lieu of an injunction" prohibiting future infringement by the parties if all sides could agree on the wording. The pub landlords have said they would be happy to undertake not to play the anthem out loud, whilst QC said it is prepared to "take appropriate steps to tell its customers not to allow the anthem to be played out loud".
The pub landlords and QC "must be entitled to carry on their businesses in a way which avoids infringement of FAPL's copyrights if they are able to do so," the judge said.
Lord Justice Kitchin also found that the FAPL's terms of licence of its broadcast rights were anti-competitive. The licence agreement had prohibited Greek broadcaster, Netmed, selling satellite decoders to UK pub owners despite the fact it constituted a competition-restricting agreement banned by EU competition laws.
"I believe justice would be achieved by the grant of a declaration that the relevant obligations in the agreements in issue constituted a restriction on competition prohibited by [EU competition laws] to the extent that such obligations prohibited Netmed from supplying for use in the UK satellite decoder cards which were capable of permitting any person to view the relevant transmissions in an intelligible form," he said. "I also see merit in the inclusion of a further statement in the declaration that, for the avoidance of doubt, the declaration is without prejudice to any rights of FAPL in respect of copyright infringement."
"Suppliers of the decoder cards should be wary as they can be liable for authorising any infringement by the landlords," said Walker. "An issue for the Premier League will be to rethink its territory by territory match rights licensing model so as to find a way to sustain the value of the Premier League broadcasting rights, now that its attempts in its contracts to stop decoder cards being supplied across borders has been found to breach EU single market free trade laws."
Court of Appeal copyright dispute ‘might never have arisen’ if parties had sought legal advice