Full case report

FA Premier League Ltd v QC Leisure & Ors

Reference [2008] EWHC 44 (Ch)
Court Chancery Division

Judge Barling J

Date of Judgment 18 Jan 2008


Summary

Copyright – Broadcasts – ss.298, 299 Copyright Designs and Patents Act 1988 – Competition law – Article 81, EC Treaty – Infringement of copyright – Territorial licences – Decoders – Football matches – Use of non-UK decoders to received broadcasts of football matches in UK pubs


Facts

PL owned various copyrights in the feed of of each Premier League football match as sold to foreign broadcasters. The foreign broadcasters are required by the terms of their licence agreement with PL to undertake to procure that no device is knowingly authorised or enabled so as to permit anyone to view any such match outside their particular licensed territory. PL claimed that the Ds supplied pubs in the UK with non-UK decoder cards sourced through subterfuge from a variety of countries within and outside the EU, contrary to ss 298 and 299 of the CDPA 1988. Ds claimed to be allowed to act in this way without PL’s consent under the CDPA and certain provisions of EC law, including EC Treaty articles guaranteeing free movement of goods and services and Article 81 relating to agreements or concerted which prevent, restrict or distort competition.

PL sought summary judgment on the Art 81 defence, alternatively a stay of the trial of the Art 81 defence until further order.


Issue

(1) Whether, in the light of the ECJ case law, and in particular the decision in Coditel II (Case 262/81 Coditel SA and Others v Cine-Vog Films SA and Others), the Art 81 defence could as a matter of law succeed;
(2) If it could succeed as a matter of law, whether it should be stayed until after the trial of the ‘traditional’ copyright claims relating to Ds’ alleged procurement and authorisation of the copying by publicans of the copyright works comprised in the matches.


Held

Rejecting PL’s applications:
(1) Coditel II was narrow in scope, restricted to the impact of Art 81 on “the mere fact” of the grant to a licensee of exclusive rights in a particular territory, as opposed to obligations on licensees to prevent acts taking place outside of their respective territories. Further, it was not fanciful to suggest that changes in the legislative background may mean that Coditel II would have been decided differently today.
(2) The competition issues were not the only questions of EC law which were involved in these claims. A stay could lead to two references to the ECJ rather than one. It appeared that the infringement claims and the Article 81 issue were linked in that the validity of the pleaded contractual prohibition is a necessary part of the Claimant’s argument in relation to both the copyright and the decoder card right claims.


Comment

The legal issues raised by this decision and the case generally are of considerable importance to not only Pay-TV business models but also the value of the underlying broadcasting rights. Those issues have remained unresolved for many years. Ever since the decision of the House of Lords in BBC Enterprises Ltd v Hi-Tech Xtravision Ltd & Ors [1991] 2 AC 327 (a case on ‘pirate’ decoders), there has been doubt over the legal effects within the EU of contractual territorial restrictions on the export of authorised decoders.

Trial of the claim is currently due to start in mid-April.


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Instructing Solicitors

DLA Piper for the Claimant; Orchard Brayton Graham for the Defendants in the QC Leisure and Madden actions; and Molesworth Bright Clegg for the Defendants in the AV Station PLC action.