Court of Appeal dismisses FAPL appeal

Festive mood now spoiled for FAPL?

Just in time for Christmas: a present has been delivered to UK-based copyright enthusiasts, in particular those many fans of the right of communication. 

This morning  the Court of Appeal handed down its decision in Football Association Premier League Ltd v QC Leisure and Others [2012] EWCA Civ 1708, dismissing the appeal brought by FAPL.

The judgment, which was delivered by Lord Justice Etherton (with whom Lord Justice Munby and Lord Justice Lewison agreed) followed an appeal from part of an order on 3 February last of Lord Justice Kitchin (noted by the IPKat here) and, prior to that, the controversial 2011 judgment of the Court of Justice of the European Union (CJEU) in Joined Cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd (noted by the IPKat here). 

Following the ruling of the High Court of Justice in February last, which was favourable to pub landlady Karen Murphy (here), it was again the turn of QC Leisure to see how the Court of Appeal would have applied the principles set by the CJEU.

Background

As readers will remember, the cases arose out of the use of foreign decoding devices in the UK to access transmissions of live FAPL matches. Litigation had ensued because such devices, although manufactured and marketed lawfully, were used outside the geographical area for which they had been issued. 

FAPL, which runs the English Premier League, arranges the filming of the matches, for which it exercises television broadcasting rights. These includes making the audiovisual content of sporting events available to the public by means of television broadcasting. FAPL used to grant exclusive licences obtained under an open competitive tender, in respect of those broadcasting rights for live transmissions. In the UK one of the licensees for UK live broadcasts was BSkyB (Sky).

To safeguard the territorial exclusivity of the various licences, broadcasters used to take it upon themselves to prevent the public from receiving their broadcasts outside the area for which the licence was granted. This was done, in the first place, by means of encryption of the broadcasts. In the second place, broadcasters could not supply decoding devices that allowed their broadcasts to be decrypted for the purpose of being used outside the territory of the licence.  

Publicans who wished to screen FAPL matches in their pubs must access the broadcast via a licensed broadcaster, for example by having a Sky subscription and using a Sky satellite decoder card. 

Three sets of proceedings arose because foreign satellite decoder cards, some of which could be obtained considerably more cheaply than under a Sky subscription, had been sold in the UK to allow FAPL matches to be shown in pubs. Two of the actions were brought against suppliers of equipment and satellite decoder cards to pubs and bars, which enabled the receipt of non-Sky satellite channels. The third action was against licensees or operators of four pubs that showed live FAPL matches broadcast on channels produced by Arab Radio and Television Network.

The appeal decided today was from the part of Lord Justice Kitchin's order which dismissed the actions insofar as they were based on a cause of action for infringement of copyright in the film works contained in the broadcasts by communication to the public by electronic transmission contrary to Section 20 of the Copyright Designs and Patents Act 1988 (CDPA).

Not everybody goes to the pub just
to watch football matches

The CJEU decision

As recalled by Lord Justice Etherton, in its 2011 decision the CJEU made it clear that (§193) the concept of communication to the public pursuant to Article 3(1) of the InfoSoc Directive must be construed broadly, as referring to any transmission of the protected works, irrespective of the technical means or process used. The Court also said that the proprietor of a pub effects a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment. The CJEU thus held that communication to the public within the meaning of Article 3(1) must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house.

Section 72 defence is applicable, says the Court of Appeal

What was at stake before the Court of Appeal was basically whether a defence under Section 72 CDPA ("Free public showing or paying of broadcast") could be invoked successfully by QC Leisure and similar undertakings.
The Court of Appeal decision contains a detailed discussion as to the amendments brought to the CDPA by the Copyright and Related Rights Regulations 2003, by which the UK intended to give effect to the InfoSoc Directive.

In particular, Lord Justice Etherthon considered the claimant's argument that, prior to 2003, Section 72(1) did not provide a defence to infringement of copyright by a restricted act within Section 20, and therefore no such defence was available to QC Leisure and the others. Before the adoption of the 2003 Regulations, this provision read as follows:

"72. Free public showing or playing of broadcast or cable programme

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

(a) the broadcast or cable programme, or

(b) any sound recording or film included in it."

The 2003 Regulations amended it so as to provide as follows:

"72. Free public showing or playing of broadcast

(1) 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.

(1A) For the purposes of this Part an "excepted sound recording" is a sound recording—

(a) whose author is not the author of the broadcast in which it is included; and

(b)which is a recording of music with or without words spoken or sung.

(1B) Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public—

(a) forms part of the activities of an organisation that is not established or conducted for profit; or

(b) is necessary for the purposes of—

(i) repairing equipment for the reception of broadcasts;

(ii) demonstrating that a repair to such equipment has been carried out; or

(iii) demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire."

The Court rejected FAPL's arguments, and held that (§52):

Bartholomew asked for a
foreign decoding device -
has he gotten one at last?

"the wording of section 72(1) is clear and unambiguous in embracing within its ambit any "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. The mere fact that statutory language is clear and unambiguous, if the words are given a literal meaning, is not necessarily an insuperable obstacle to a conforming interpretation in accordance with the Marleasing principle. In the present case, however, the language of section 72(1) must be seen in the context of the clear intention of the Government, apparent from contemporaneous documentation, including its published conclusions on the 2002 consultation, to maintain to the fullest extent possible the UK's existing exceptions to copyright infringement. The retention of the same clear and unambiguous introductory language in section 72(1) after the [InfoSoc] Directive is a strong indication of the Government's intention to make no alteration to its ambit (save in relation to excepted sound recordings). In short, the clear and unambiguous introductory wording to section 72(1) supports the proposition in the present case that the corollary of the Government's mistake as to the ambit of section 72(1) is that the Government did not intend to introduce a specific new limitation to its ambit other than the express provision relating to sound recording.”   

As a result (§62), 

"the respondents have a defence under section 72(1)(c) but only because the UK has failed to implement the [InfoSoc] Directive by giving a wider exception to the Article 3 right than is permitted under Article 5 [exceptions and limitations]."