Premier League Copyright Infringed but High Court Calls Time on Anti-Competitive Contracts

Keywords: CJEU, decoder cards, Premier League, UK pubs, copyright infringement

Following the recent landmark decision of the Court of Justice of the European Union (CJEU), the UK High Court has ruled that using decoder cards imported from other Member States to show live Premier League football matches in UK pubs constitutes a "communication to the public" and can give rise to copyright infringement of the "works" contained in those broadcasts. However, the Football Association Premier League (FAPL) cannot prevent companies from supplying the UK market with decoder cards through privately agreed contractual provisions prohibiting such activity, as this constitutes a restriction on trade within the European Union.

Football Association Premier League Ltd and others v QC Leisure and others [2012] EWHC 108 (Ch)

The High Court has held that, to the extent Premier League broadcasts contain copyright works, publicans are infringing the rights of the FAPL when they screen live matches in their pubs using decoder cards imported from other Member States into the UK without the FAPL's permission. Companies supplying decoder cards to publicans are authorising infringement of those works, to the extent that any infringement occurs. However, the High Court reiterated the CJEU's decision from October 2011 that contractual provisions prohibiting the sale of decoder cards from one Member State into another are void as they constitute a constraint on trade in breach of Article 101 of the Treaty on the Functioning of the European Union (TFEU) and will make a declaration to that effect.

Background

The FAPL commercialises Premier League football matches by granting exclusive rights to broadcasters on a per-territory basis, requiring them (i) not to exploit their rights outside their allocated areas, (ii) to encrypt their programmes so that they cannot be seen outside their territory and (iii) not to sell decoding cards outside their territories.

When the FAPL found out about the use of foreign decoders in UK pubs, it took action against QC Leisure (and others) who were supplying decoder cards, as well as against a number of landlords. The FAPL alleged infringement of its copyright in various works present in the broadcasts, including the Premier League anthem, highlight sequences and on-screen graphics and logos. It claimed that these actions breached provisions of the Copyright, Designs and Patents Act 1988 (the CDPA).

In June 2008 the High Court referred a...