Copyright protections prevent publicans using foreign decoders to show Premier League matches: Luxton case reviewAlex Haffner, Krish Mistry
As is well known, the English Premier League (EPL) sells the live feed of Premier League football matches to licensed broadcasters around the world. In the UK, in February 2015 Sky and BT Sport paid a record £5.136 billion for live Premier League TV rights for three seasons from 2016-20171. Sky and BT Sport then charge the end consumer a monthly fee, which varies according to use in a domestic or commercial context. A significant part of the value attributable to these rights is the "territorial exclusivity" afforded by the EPL to its national broadcasters, which it then re-enforces by doing all it legitimately can contractually to discourage those licensed broadcasters from selling their services outside their allocated territory.
Football Association Premier League Ltd v. Luxton2 (“Luxton”) is the latest case to pass through the courts where the EPL is at odds with publicans who, faced with the high cost of obtaining a subscription to Sky or BT Sport, seek alternative sources of supply outside the UK. In this latest leg of the fixture, the EPL came out on top. However, in previous meetings, such as in the case of Karen Murphy v. Media Protection Services,3 the result has been less clear cut.
This article briefly recaps the principles from the Karen Murphy case before reviewing the Luxton case. Whilst each of these cases concerns publicans who have accessed live Premier League football from non-UK providers located within the EU, this latest instalment dealt primarily with the distinction between domestic and commercial use of pay TV subscriptions.
The Karen Murphy Case: Territorial restrictions in the EU and Article 101
Article 101 of the Treaty on the Functioning of the European Union (Article 101) prohibits agreements that have as their object or effect the restriction of competition within the EU and which have an effect on trade between EU member states. Any agreement which seeks unlawfully to partition the EU single market is caught under Article 101.
In 2012, Ms Murphy won her court case against the Premier League over using a Greek TV decoder to show live football matches in her pub. Instead of using Sky, which costs £700 a month, she used a Greek TV station, Nova, which has the rights to screen Premier League games in Greece at a cost of £800 a year4.
The European Court of Justice (the ECJ) examined the Murphy case jointly along side Football Association Premier League Ltd v QC Leisure 5 which raised similar issues – copyright infringement and restrictive agreements. The ECJ found that the EPL's broadcasting licence agreements, which limited the supply of decoding devices outside the contracted territory, were artificially making that territory exclusive. This was prohibited by the rules on EU free movement of services and therefore contrary to Article 101.
The ECJ ruled that the EPL could not claim copyright over the matches as they were not considered the author's own intellectual creation. Any surrounding media, however, such as the opening video sequence, the Premier League anthem and various graphics were protected by copyright. Therefore, to use these "works" a pub would require the permission of the Premier League. As such, the EPL was able to prosecute publicans such as Murphy who broadcast unauthorised foreign satellite services under EU copyright law, specifically Article 2(a) of the Copyright Directive.
This was therefore very much a game of two halves.
The Luxton Case: Commercial vs. Domestic Use
This month, the Court of Appeal dismissed Mr Luxton's appeal against a High Court decision which ruled he had infringed copyright laws in the manner described above.
Mr Luxton is the licence holder of a pub in Swansea. The issue here was Mr Luxton's use of a satellite decoder card authorised for use in domestic premises in Denmark in a commercial premises in the UK. In particular, the Premier League's logo and other graphics which were pertinent to the Murphy and QC Leisure cases were on show during the broadcasts.
In the High Court, the EPL claimed copyright infringement and argued that Mr Luxton had no real prospect of raising a successful defence, and accordingly the High Court should award the EPL injunctive relief and damages.
Mr Luxton argued that proceedings were brought by the EPL to prevent use of a foreign decoder in the UK, and this was contrary to Article 101 and the judgment in the Murphy case. Additionally it was argued that agreements between the EPL and its exclusive licensees had prevented Mr Luxton from being supplied with a foreign decoder card authorised for use in commercial premises.
Ms Justice Rose, the presiding judge, noted that whilst territorial restrictions were contrary to EU law as found in both the case of Murphy and QC Leisure, this was not relevant to the issue of copyright infringement. Indeed, in the above cases, the Article 101 declaration was given without prejudice to EPL's claim of copyright infringement. Ms Justice Rose found that the EPL had a lawful right to prevent unauthorised use of copyright and granted injunctive relief and ordered Mr Luxton to pay legal costs.
On appeal, both arguments put forward by Mr Luxton in the High Court were rejected by the Court of Appeal. Instead it was found that the key facts in the case concerned the unauthorised communication of the EPL's copyright works, which had only been authorised for domestic usage, in a commercial context.
Unlike in the Murphy case, the issue of territory was deemed irrelevant. Further, the Court struggled to see the causal link between Mr Luxton's use of the domestic card and the EPL's agreements and practices.
It appears the battle between the EPL and publicans is currently a "score draw".
Publicans are free to use foreign decoders in order to watch live broadcasts of the Premier League following the path set by Ms Murphy; however, in doing so, they risk scoring an own goal with regards to copyright infringement.
The next leg of the legal battle between the EPL and publicans may, however, prove more decisive.
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- Tags: Competition | Copyright | Copyright Directive | ECJ | English Premier League | European Union | Football | Intellectual Property | Treaty on the Functioning of the European Union (TFEU) | United Kingdom (UK)
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