Well, it was a hell of a match, a battle even, between the publicans and the suppliers of their foreign decoder cards against the Premier League over the rights to show live Premier League games in pubs. It was been going all season and the result was in doubt until the end but now Kitchen LJ has adjudicated - and the result is that the Premier League have just squeaked home, but it was close. A 4-3 thriller with the winner coming late into extra time.
What the publicans achieved
Against most pundits predictions at the start of the dispute, the publicans are allowed to:
- import foreign decoder cards from other pay TV systems into the UK;
- show the broadcast of a Premier League match itself together with any film included within the broadcast of the match without infringing the copyright of Sky and/or Premier League because of an exception in the Copyright Act in the UK (the Section 72 defence); and
- finally, because importation of the decoder cards is no longer illegal, Mrs Murphy's criminal conviction will be quashed.
Where did it all go wrong?
Unfortunately, for the publicans, copyright extends beyond films and broadcasts and includes dramatic, literary and artistic works (protected works). However, the Section 72 defence does not apply to these works. Therefore, the Premier League anthem cannot be played in pubs without permission because it is a musical work. The commentary could amount to a literary work. Certainly, it may become more scripted than has been the custom to date. No doubt the Premier League are busily working on how they can include other protected works into the broadcast of their matches (such as logos, etc.). Perhaps the pre-match handshake of which must has been written recently will be replaced by a recital of the 'Premier League poem' – a literary work – now you are getting the picture.
Therefore, where the FAPL broadcast of a match includes such protected works, to show it in pubs or to supply a decoder card which allows such protected works to be shown in the pub is a breach of copyright in the protected works of the FAPL. This is because Mr Justice Kitchen ruled that where a publican screens a live Premier League match in their pub using a foreign decoder card, they are communicating the work to the public and without the FAPL'S permission to do so, they will infringe copyright. The Section 72 defence exempts infringement of copyright in the broadcast of the match itself, and any film included within the broadcast of a match when the screening is made to members of the public who are admitted free of charge. However, the Section 72 defence does not exempt the communication to the public of any ancillary protected works included in the broadcast of a match. And that, as they say, is where the case was won and lost.
The Premier League will breathe a huge sigh of relief. Whilst the sound may be turned down in the pub, it will be difficult to get rid of an onscreen logo that is constantly part of the broadcast stream or appears intermittently on an instadia billboard. This will be an artistic work.
However, if case proves anything, it proves that it is never over, until it is over and therefore with the European Commission threatening to get involved, a rematch may be on the cards. But, unless that happens, publicans will need to show the "pint glass logo" on their television sets in the pub when showing Premier League games to avoid trouble.
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