Premier League wins battle against foreign piracy websites

Barclays Premier League Medals
Published 06 August 2013

Andrew Nixon and Morris Bentata examine the Premier League’s successful attempt to shut down FirstRow sports and the wider implications for sports rights holders  

The Premier League has won a significant battle against foreign websites which aggregate and provide access to unauthorised streamed broadcasts of premium sports content.

The High Court ruling, handed down last week, means that the major UK Internet Service Providers (ISPs) must place a block on subscribers' ability to access the website, FirstRow Sports. This was the first order of its kind to apply to a website streaming unauthorised content (rather than doing so on a peer to peer (P2P) basis) and, as such, represents significant further encouragement to rights holders that effective measures are available to them at law in their continuing fight against content piracy.

 

FirstRow Sports

FirstRow Sports (FirstRow) is a website registered in Sweden. It was accessed by both individual users and public houses and provided the users with unauthorised access to the broadcasts. FirstRow became one of the most successful websites in the UK, attracting as many as 10million worldwide hits. These access levels allowed the website to generate significant annual advertising revenue, estimated to be between £5million and 9.5million.

 

The legal challenge

Closing down unauthorised websites has proven to be a challenge for rights holders. It effectively becomes a game of 'cat and mouse'. As soon as an injunction is obtained to shut down a website, the unauthorised operator is able to activate a new website using a different domain name. Instead, the more effective strategy was not to take direct action against the pirate websites, but to focus on preventing user access to those websites by securing a blocking order against relevant ISPs.

The cause of action upon which this strategy is based arises from section 97A of the Copyright, Designs and Patents Act (CDPA) 1988. Section 97A (1) CDPA provides the High Court with the power to grant injunctions against ISPs where the ISP has actual knowledge of a user using their service platform to infringe copyright. Section 97A (2) CDPA provides that in determining whether there is actual knowledge, all relevant matters should be taken into account (including whether the ISP has received notice and details of the infringement). This legislation was brought in to ensure compliance with Article 8(3) of the Information Society Directive, which provides that rights holders within member states are entitled to seek an injunction against ISP intermediaries which provide a platform for third party infringers.

 

Copyright protection

Key to the Premier League's argument is the scope of copyright protection. As was highlighted in the joined cases of Football Association Premier League Limited (1) (FAPL) and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Limited, doubt was cast on whether or not there could be any copyright in a match broadcast (copyright being limited to the creative elements in the broadcast, such as the music and the logos).

The Premier League circumvented this issue through working closely with its production partner, IMG Media. Before the feed is transmitted it is recorded, meaning that IMG Media is broadcasting a film of a live match, rather than the live match itself, which attracts the benefit of copyright protection. This allowed the Premier League to claim copyright in the recorded feed, in addition to copyright in the graphics, music and the Premier League and Barclays logos. Lord Justice Arnold was satisfied that copyright subsisted in those works and that the Premier League owned the copyrights.

The copyright content was aggregated on, and accessed via, the FirstRow website by clicking on FirstRow links and was presented in a FirstRow frame. Against this background, the High Court found that, notwithstanding that the content was ultimately streamed from third party websites, FirstRow was itself (or, at least, jointly with the third party websites) infringing the Premier League's copyright.

The infringing act was that of an unauthorised 'communication to the public', contrary to section 20 of the Copyright Designs and Patents Act 1988. Following the ITV v TV Catchup case (previously reported on here), it was held that the act of retransmission of television broadcast content on the internet did indeed constitute an infringing 'communication to the public' because it was a separate communication to the public by a different technical means. In addition, even if that rationale had not been applicable, FirstRow's activities would nevertheless have infringed because its users represented a 'new' public – i.e. users who were not legitimately entitled to view the content.

 

Conclusion

It is the first time such an order has been applied to a sports-specific website in the UK and the first time that such an order has been made in relation to a website streaming content (and a website aggregating streamed content). As such, the ruling is undoubtedly an important one. Equally significant perhaps was the High Court's confirmation that the provision of a recorded world feed (rather than simply a live broadcast feed) was indeed sufficient to enable the feed itself to attract copyright protection, rather than just certain copyright works within the feed.

The ruling is therefore an important one, not only for the Premier League, but also for other sports rights holders. It is no surprise that the Premier League was supported in its action by other major rights holders in football (the Football League, the Football Association, the Scottish Premier League and UEFA), as well as rights holders from other major sports including the PGA European Tour, the Professional Darts Corporation, World Snooker and the Rugby Football Union.

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