Pub football and the Kitchin sink ...

It's not quite eleven-a-side, but the much-contested case of Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA, Union de Associations de Football, British Sky Broadcasting Limited, Setanta Sports SARL, Group Canal Plus SA and The Motion Picture Association v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, Sanjay Raval, David Greenslade, SR Leisure Ltd, Philip George Charles Houghton and Derek Owen; The Secretary of State for Business, Innovation and Skills intervening [2012] EWHC 108 (Ch) does have that sort of feeling to it.

The return of a High Court Judge from the lofty
heights of the Court of Appeal is no everyday event

The decision handed down late last week is the latest in a long line of decisions going back to 2008 when Mr Justice Kitchin (as he then was), in [2008] EWHC 1411 (Ch) (noted here by the IPKat), decided in a monumental 385-paragraph to refer a number of copyright-related questions to the Court of Justice of the European Union for a preliminary ruling. On 4 October 2011 the Court of Justice duly delivered its ruling in Joined Cases C-403/08 Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Philip George Charles Houghton and Derek Owen and C-429/08 Karen Murphy v Media Protection Services Ltd (see IPKat post here),  following which Mr Justice Kitchin -- having metaphorically vanished as Gandalf the Grey and returned as Gandalf the White -- swooped down from the lofty heights of the Court of Appeal, England and Wales, in his new guise as Lord Justice Kitchin in order to apply the December ruling to the facts of the dispute he had referred some three and a half years earlier.

At 102 paragraphs, last week's ruling was a doddle compared with the 385 paragraphs of the original and the 211 paragraphs of the Court of Justice ruling [Merpel says, have you noticed how each judgment is shorter than its predecessor? If it should ever get to the Supreme Court, it'll be tiny], but what was it all about -- and what happens now? Let the Kat explain.

Essentially, the Football Association Premier League (FAPL) controlled all the rights to the best football matches across Europe and licensed broadcasters to broadcast them to subscribers. To make sure that only paying subscribers watched the broadcast matches, those matches were encrypted so that you had to buy a decryption box. It was a lot cheaper to buy decryption boxes in Greece, where the market for encrypted soccer was not so lucrative, but broadcasts were licensed on a country-by-country basis so that broadcasters who had to pay more for their licences in bigger countries where football broadcasting was worth more could recoup their outlay and make their profit without worrying about people buying their decryptors in cheaper jurisdictions and import them.  So were people who bought Greek decoders, imported them into England and used them for watching English Premier League football matches infringing copyright or anti-decryption rules -- or was it the FAPL and its cohorts which were the villains for perpetrating anti-competitive practices and dividing up the European Union into separate national markets?

The Court of Justice couldn't actually say who was the winner of the loser, since in theory it's only there to give a ruling on a set of hypothetical questions which the referring court then rules on -- though it did more or less say that the pub-owners who were importing the decoders so that their customers could watch the matches were a little bit naughty since, while there was no copyright in a football match, there were other subsidiary copyrights that were being infringed. However, the FAPL and Co. were naughtier since they were behaving contrary to the EU's competition laws.

Did Kitchin LJ agree with all of this? Basically, yes -- but there was still some fine-tuning to do. First, considering whether the showing of such matches was a communication to the public, he turned to s.72(1)(c) which of the Copyright, Designs and Patents Act 1988, which states:

"The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in

(a) the broadcast;

(b) any sound recording (except so far as it is an excepted sound recording) included in it; or

(c) any film included in it".

Construing the provision in as literal a manner as one might ever hope to see in the 21st century, he said:

"I recognise that Article 3 of the Copyright Directive does not permit a defence in the terms of s.72(1)(c) and ...  I am satisfied that the legislature intended to implement this provision .... I am also conscious that the obligation on this court to construe domestic legislation consistently with Community law obligations is both broad and far reaching. It may require the court to depart from the unambiguous meaning of a statute and to read it down by implying words into it. It may also require the court to adopt an interpretation which is not the natural one. Further, a conforming interpretation necessarily applies retrospectively" [para.73]. 

However,

"In my judgment s.72(1)(c) means what it says. The showing or playing of a broadcast in a public house to members of the public who have not paid for admission does not infringe any copyright in any film included in the broadcast" [para.78].

Had there been an authorisation to commit copyright infringement? Yes, this was an authorisation in physical form*:

" ... the supply of the decoder cards to customers constituted an authorisation to use the decoder cards for the purpose for which they were supplied. In the case of publicans, they were supplied to allow customers to watch television programming in their public houses" [para.81]. 

What about the communicating to the public of the official Barclays Premier League Anthem that accompanied some of the matches? This claim, the judge said, would fail in any event unless the claimant could establish that, when the broadcast took place, the Anthem was actually played aloud [para.83].

In view of the fact that some infringement had been established, what would the FAPL and fellow claimants get out of it?  Probably not a lot.  Said Kitchin LJ:

"I am satisfied that it is appropriate to make an order for an inquiry or account but that in the light of the scale of the infringements it is appropriate that the cases should be transferred to the [bargain-basement] Patents County Court. At a relatively late stage the claimants have introduced into the draft order directions for disclosure of the extent of the defendants' dealings in and use of decoder cards. I have reached the conclusion it is not appropriate to make such an order at this stage. This is not a matter in relation to which the defendants have had an opportunity properly to consider their position and it appears they may already have given substantial disclosure in the course of the main proceedings. The judge hearing this matter in the Patents County Court [Merpel's giving odds of 7/2 that this will be Lord Justice Kitchin again, sinking a little further into the murky abyss of judicial life in the raw ...] will be in a much better position to assess what, if any, further orders for disclosure are necessary and proportionate to enable any outstanding issues to be disposed of" [para.102].

Purrcival

A survey of the media suggests that the winner is the FAPL, but both teams have claimed to be satisfied with the outcome.  The IPKat, whose cousin Purrcival made his Premier League debut at Anfield last night in the Liverpool v Spurs fixture, thinks that it's very sad when disputes of this nature, would like to see these matters sorted out by realistic and affordable licensing policies on the part of the rights owners, matched by a willingness to pay realistic and affordable licence fees on the part of the publicans.  Then, with luck, we can have a realistic and affordable pint of ale while we watch our footie.

* The IPKat thanks Daniel Gallagher (Mayer Brown International LLP) for picking up a small but significant error in the original version of this post. Merpel says: shame on everyone else who missed it!