Premier League Football: Showings Of Foreign Broadcasts In UK Pubs - The High Court Decides

On 3 February 2012, the English High Court (Kitchin LJ) handed down its judgment in the case of Football Association Premier League Ltd and Others v QC Leisure and Others [2012] EWHC 108 (Ch). No doubt this will be swiftly followed by a parallel decision in the criminal proceedings against the Southsea pub landlady, Mrs Murphy. The court's decision follows on from the rulings made by the European Court of Justice (CJEU) in October last year on questions which the High Court had referred to it for determination (see Reed Smith's alert on the CJEU judgment here).

The High Court has declared, in line with the CJEU judgment, that licence conditions requiring broadcasters not to sell decoders outside their licensed territory constitute a restriction on competition prohibited by Article 101 of the Treaty on the Functioning of the European Union (TFEU). However, departing from expectations raised by the CJEU judgment, the High Court has also found that showing a broadcast which includes filmed elements such as highlights of previous matches to members of the public in a public place who have not paid for admission to that place does not infringe the copyright in those works.

The High Court's bolstering of the CJEU finding that licence conditions designed to provide absolute territorial exclusivity in broadcasts of Premier League matches have an anti-competitive purpose contrary to Article 101 TFEU will reinforce concerns among owners of other valuable media properties traditionally licensed territorially in Europe – and their exclusive licensees –about the implications of the decision for their businesses. Film and television distributors, and the broadcasters who are their customers, have been given no comfort by the High Court.

The High Court's decision on whether there was any copyright infringement is altogether more nuanced. The CJEU had found that whilst a Premier League football match itself is not protected by copyright, there was copyright protection for some elements included in the Premier League's feed of the matches to its licensee broadcasters, such as the opening video sequence, the Premier League anthem, and pre-recorded highlights of previous matches. The CJEU held also that the transmission of these copyright works to a pub audience constitutes a "communication to the public", which requires authorisation from the rights holder. The CJEU decision therefore appeared to leave the publican defendants with a pyrrhic victory since...