Full case report

FA Premier League Ltd v QC Leisure & Ors

Reference [2008] EWHC 1411 (Ch)
Court Chancery Division

Judge Kitchin J

Date of Judgment 24 Jun 2008


Summary

Copyright – Broadcasts – s.298, Copyright Designs and Patents Act 1988 – Infringement of copyright – Directives 98/84/EC, 89/552/EEC, 93/83/EEC, 2001/29/EC – Competition law – Articles 28, 49, 81, EC Treaty – Reference to European Court of Justice – Article 234, EC Treaty – 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 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 (and operated such pubs) and that these actions infringed their rights under s.298 of the CDPA 1988 and their copyrights in the footage. Ds claimed that the cross-border trade in decoder cards was lawful even without PL’s consent under the CDPA and certain provisions of EC law, including in particular Directive 98/84/EC (the Conditional Access Directive), and sought a reference to the European Court of Justice.


Issue

Whether the decoder cards lawfully issued in one territory could lawfully be traded cross-border and used in another territory.


Held

Referring the issue to the European Court of Justice (questions to be formulated):
The use by broadcasting organisations of encryption techniques to prevent access to programmes without payment, and to prevent access to those programmes to viewers outside of specified territories even if they are willing to pay, created a tension with the concept of a Community audiovisual area and the principles of an internal market without frontiers. This raised serious policy questions of the greatest importance to the European single market. A reference to the ECJ at this point would be quicker and cheaper than allowing the matter to go to appeal.


Comment

Although holding that the matter was inevitably heading to Luxembourg and that it ought to get there sooner rather than later, the judge nevertheless took the opportunity to give his own ‘provisional view’ on the issues raised, coming down squarely in favour of the Defendants on the central issue of the correct interpretation of Directive 98/84/EC .


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Instructing Solicitors

DLA Piper UK LLP for the Cs; Molesworth Bright Clegg and OBG Cameron Banfill LLP for the Ds