UK: Your Local Pub, A Football Match... And The High Court

Last Updated: 26 August 2008
Article by Adrian Heath-Saunders

The simple charms involved in watching your favourite team compete in the Premier League while enjoying a drink in your local pub have been the subject of a recent High Court decision. How could this be possible? The answer involves examining how your local pub has chosen to receive and broadcast live Premier League matches – and specifically whether this involves the use of foreign decoder cards to access foreign broadcasts of those matches.

The FA Premier League organises the filming of Premier League matches and licenses the rights to broadcast them on a territorial basis for specific periods of time. For example, BSkyB is currently the exclusive licensee for live broadcasts of matches in the UK. The FA Premier League argues that exclusivity is necessary in order to realise the optimum commercial value of the rights since broadcasters are prepared to pay a premium in order to acquire exclusivity.

In order to show Premier League matches your local pub may have taken a subscription to BSkyB. Alternatively, your pub may have purchased a foreign decoder box and decoder card from abroad enabling it to show a foreign broadcaster's programming, which is generally a much more cost-efficient option for the pub. The case in question (FA Premier League v QC Leisure and others) concerned the consequences of choosing the foreign decoder option.

The FA Premier League brought test actions against importers and suppliers of decoder cards and boxes to pubs in the UK and against various pubs at which live Premier League matches were screened using those decoder cards. The pubs in question had avoided considerable expense by purchasing decoder equipment from Greece. The case raised a host of tangled questions including the interaction of various EC directives, the nature of the rights arising in the broadcasts, the alleged infringement of such rights and the impact of European Community provisions on the free movement of goods and services and competition law.

The FA Premier League produces a "World Feed" output of its matches which in addition to the recording of the relevant match itself contains various logos, video sequences, on-screen graphics, music and English commentary. The World Feed is then encrypted and transmitted by satellite to the foreign broadcaster which decrypts the World Feed to add its own logo and possibly some commentary. The signal is subsequently encrypted again and transmitted by the foreign broadcaster to its subscribers. The subscriber's decoder box will decrypt the signal with the aid of a decoder card. The foreign broadcasters licensed by the FA Premier League agree not to authorise the viewing of any transmission outside the relevant territory and not to supply decoder cards for use outside the relevant territory.

The FA Premier League argued that the defendants' actions in using non-UK decoder cards and boxes to screen live Premier League matches contravened a provision of the Copyright, Designs and Patents Act 1988 ("Act") which gives the holders of rights in broadcasts similar rights and remedies in respect of illicit devices designed to circumvent conditional access technology (eg pirated decoders) as copyright owners have in respect of infringement of their copyright. This legislation stems from an EC Directive known as the Conditional Access Directive. For good measure the FA Premier League also argued that the defendants had infringed its copyright in various artistic and musical works, films and sound recordings.

One of the key elements of the case was whether decoder cards used by the defendants fell within the category of "illicit devices" defined in the Act and the Conditional Access Directive. The defendants argued that their use of decoder equipment in the UK (which had been legitimately purchased in another European member state) was perfectly lawful and that the term "illicit device" was limited to pirate or counterfeit decoders and did not extend to decoder equipment which had been lawfully manufactured and then parallel imported into the UK. The judge felt that this was a question for the European Court of Justice ("ECJ") to decide, however the judge indicated he preferred the defendants' arguments on this point.

As regards the general allegations of copyright infringement, the defendants relied as a general defence on an EC Directive known as the Satellite and Copyright Directive which stipulates that communication of a broadcast to the public is deemed to take place in the country from which the broadcast is made. Therefore, the defendants argued, the relevant country in this case was Greece, being the country from which the broadcast was made, and all that was relevant was whether the act of transmission in Greece was authorised. They argued that they could not infringe UK copyright law merely by receiving the broadcast in the UK. This was another issue which the judge felt he should refer to the ECJ.

On the particular questions of copyright infringement, the judge held that the copying of a film or broadcast in a decoder or on a TV screen did not amount to the copying of a substantial part of the relevant work since a few frames (which is all that is copied into a decoder at any one time) could not amount to a substantial part and as a result this activity did not amount to an infringement. However as regards artistic works (such as logos) which were reproduced in the decoder and on screen, there was copying although the defendants had a potential defence under certain provisions relating to transient/incidental copying which had been introduced by an EC Directive. Whether this defence did indeed apply was referred by the judge to the ECJ, although again the judge indicated that he preferred the defendants' arguments.

As regards allegations that the defendants had infringed copyright by performing, playing or showing the broadcast in public, the judge noted that there was a general defence to infringement in respect of the free showing of the broadcasts but pointed out that, due to the wording of this defence, the playing of the Premier League anthem during the broadcast could infringe the musical copyright in that anthem. It is possible that a solution to this particular issue would be for a pub to mute the sound on its TV whenever the anthem is played.

The judge also considered the defendants' argument as to whether the restriction on the circulation of authorised decoder cards (outside the particular territory agreed by foreign broadcasters) could be justified with regard to EC competition law. This question was also referred to the ECJ for consideration.

A decision from the ECJ on these points will be eagerly anticipated by the relevant parties and interested onlookers. The ECJ's decision has the potential to dramatically affect the manner in which sports bodies exploit their TV rights. In addition, it may have a direct effect on the screening of Premier League matches in your local pub...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.