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Sunday, 2 March 2014

From the rule of Law to the rule of law: Sky pick up a graphic win in Scotland

Once upon a time, playing football was a great Scottish skill.  Sadly, the land of such greats as Jim Baxter ('Slim Jim', till he discovered the stout), Denis ("The King") Law (right) and Archie Gemmill (football fans click here) has since become a nation of football-watchers and, more recently, the place where people seem to have made a recent habit of suing the people who broadcast the matches for good folk to watch in the congenial company of a Scottish pub.  Scottish IP enthusiast and Katfriend Gill Grassie (Brodies LLP) takes up the story here:
Another Scottish Own Goal? 
Hot on the heels of the Scottish Court Lisini decisions on 15 November (2013) CSIH 97 [noted on the 1709 Blog, here] and 15 January [2014] CSIH 6 [noted on this weblog here] comes this judgment of the Court of Session at [2014] CSOH 39 which on this occasion is in favour of the rights holders British Sky Broadcasting Group PLC and British Sky Broadcasting Limited. (‘Sky’). This time the Avalon Bar in Glasgow was on the receiving end of a copyright infringement action as well as claim for contempt of court. Both were dealt with at the same trial (Proof).

Following the FAPL decision of the Court of Justice of the European Union, here, use of foreign decoders to broadcast live football matches to the public can in principle no longer be prevented due to EU competition rules. However, it is still open to the owners of the copyright-protected elements included in such broadcasts to prevent showing of any such separate copyright elements so included.

In this case Sky relied upon its copyright in around 14 logos and graphics to obtain an interim interdict without notice against the pub and its manager. This was obtained on 6 September 2013 and was served on the relevant staff at the pub around 6 pm that same day. Notwithstanding this, Sky’s private investigators reported and gave evidence that the pub was still showing live football matches in the bar area, as broadcast by Sky, including the relevant logos, at 8 pm that same evening.

As a result Sky started proceedings against the sole director and manager of the pub premises for contempt of court.The upshot of the Proof/Trial as recorded in this decision was that, on the balance of probabilities,  there had been copyright infringement and a perpetual interdict was granted. There is to be a further hearing to decide whether an account of profits should be ordered and, if so, on what terms. As regards the contempt charge, the standard of proof is beyond reasonable doubt given that it is more in the nature of a criminal matter. However, despite valiant attempts by the defenders’ Counsel to argue that this onus had not been met and to rely on rather technical points involving the precise content of the interim interdict order and as to whether the exact form of copyright logos were actually being screened in the relevant 8 pm broadcast, the Judge (Lord Glennie) was in no doubt that there had been a breach of the order. This means that the two individuals concerned are required to attend court at a later date where their fate in terms of the nature of the penalty to be imposed on them will be decided.


Waiting for the footie to start ...
Perhaps this is not a remarkable decision in itself. However, it does serve as a stark warning to parties on the receiving end of an interim interdict/injunction from a Scottish court that, as soon as it is served, they need to comply immediately with its terms or face potential charges for contempt of court. In this case the act of contempt was only around two hours after service of the order. Here where compliance would have been very simply a case of switching off the televisions concerned it seems that two hours was not seen as a reasonable period to take to ensure the terms of the order were being obeyed.

Lastly and notably the interim injunctive order was obtained without notice -- which is still a reasonable possibility in Scotland. This is why the Scottish system has its own unique version of ‘protective letters’ known as caveats. If a party has one of these filed with the court, it will automatically receive advance notice of any such applications and a chance to argue against it being granted. These are straightforward and not hugely costly and can prevent considerable damage, costs and embarrassment. Given the need to comply with such orders immediately upon service and that sometimes their effect as well as the consequences of failure to meet their terms is misunderstood by their recipients, there is a lot to be said for keeping caveats in place on a permanent basis as they are triggered in the case of all interim interdict applications no matter who is making the application.

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