At the very end of 2012, the Court of Appeal dismissed an appeal in the FA Premier League v QC Leisure case. In doing so, it confirmed that the defence of "free public showing or playing of broadcast[s]" (s72 CDPA 1988) applied to the highlights and match replays contained within Premier League broadcasts. Accordingly, there was no infringing communication to the public of these copyright works. However, the defence does not apply to musical works (eg the Premier League anthem) or artistic works contained in the broadcasts (eg the logos).

Background

We have previously reported on the Premier League's ongoing battle against the suppliers of non-UK decoder cards and various publicans in the UK using those decoder cards to broadcast live Football Association Premier League (FAPL) football matches through non-UK channels.

The relevant provisions of copyright law are set out in the Copyright Designs & Patents Act 1988 ("CDPA"). The CDPA was amended in 2003 by the Copyright and Related Rights Regulations (the "2003 Regulations") by which the UK intended to give effect to EU Directive 2001/29/EC (the "Copyright Directive"). The arguments in this appeal turned on the effect of those amendments - see Annex for full details of the legislation and relevant amendments.

This was an appeal from part of the Order of Kitchin LJ (sitting in the High Court) made in February 2012. He had held that the publicans had communicated the FAPL's copyright works within the meaning of s20 CDPA. In addition, the publicans' transmission constituted the playing or showing in public of FAPL's films included in those broadcasts (the films and match replays) within s19(3) CDPA. However, there was a defence under s72(1)(c) CDPA because there was a free public showing of the broadcast. This provided a defence to both the communication to the public under s20 CDPA and the playing or showing in public under s19(3) CDPA for the films contained in the broadcast.

The Appeal Grounds

FAPL argued that the defence in s72(1)(c) should only cover the restricted act of "playing or showing of the work in public" under s19(3) CDPA. The following reasons were given why the defence should not apply to the restricted act of "communicating to the public" under s20 CDPA:

  1. prior to the amendments introduced by the 2003 Regulations, s72(1) did not apply to s20 but only provided a defence to the restricted act in s19(3). Section 20 concerned "broadcasting" which was generally accepted to be different to "showing or playing in public" within ss19(3) and 72(1);
  2. the overriding intention of the UK Government in making the 2003 Regulations was to implement and comply fully with the Copyright Directive. It made wholesale amendments to s20 in order to give effect to the exclusive right of "communication to the public" set out in Article 3 of the Copyright Directive. It didn't amend s19 because that section was dealing with something quite different;
  3. the Government did not appreciate that "communication to the public" in the amended s20 would include the act of "showing or playing [a broadcast] in public" within s72(1);
  4. the Government did not intend to extend the s72(1) defence to the restricted act in amended s20. It intended to preserve existing defences but only insofar as they were consistent with the Copyright Directive. Article 5 of the Copyright Directive did not allow a defence to s20 in such broad terms as set out in s72(1)(c); 
  5. The Courts should consider the Marsleasing principle whereby Member States must, so far as possible, interpret national legislation in light of the wording and purpose of a European Directive in order to achieve the result pursued by it. This required s72(1)(c) to be interpreted consistently with the Copyright Directive by limiting the defence to the restricted acts specified in section 19(3).

Alternatively, the defence in s72(1)(c) should be restricted to analogue transmissions because the Government intended to maintain the widest range of legitimate exceptions allowed under the Copyright Directive. 

Decision

The Court of Appeal thought FAPL's submissions were attractive but nevertheless rejected the appeal. It concurred with the first 4 arguments set out above. However, that did not mean that the s72(1)(c) defence should be limited to restricted acts within s19(3) – that went beyond the principles of legitimate statutory interpretation.

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