Media Law Legal Update

Media & Entertainment – Copyright - Sports Law - Broadcasts and Pay TV – FA Premier League Ltd v QC Leisure (Trading Name) and Others [2008] (Currently before the ECJ - 2011)

In FA Premier League Ltd v QC Leisure (Trading Name) and Others [2008], the claimant owned various copyrights in the feed of each Premier League football match, which were licenced to foreign broadcasters. Under the terms of the licence agreement, the foreign broadcasters were required to undertake to procure that no device was knowingly authorised or enabled which would permit a third party to view any match (coming under the terms of the licence agreement) outside the broadcaster’s particular licensed territory. The claimant claimed that the defendants supplied pubs in the UK with “non-UK” decoder cards sourced deceptively from a variety of countries within and outside the EU (and operated such pubs), resulting in infringement of the claimant’s rights under s.298 of the Copyright Designs and Patents Act 1988 (“the Act”) and their copyrights in the actual footage. The defendants claimed that the cross-border trade in decoder cards was lawful and did not require the claimant’s consent under the CDPA and certain provisions of EC law, most notably Directive 98/84/EC (the Conditional Access Directive), and sought a reference to the European Court of Justice.

The court held that the use of encryption methods to prevent access to its programmers without payment by broadcasting organisations, and to further prevent access to those programmers by viewers who are willing to pay but are outside a specified territory, created “a tension with the concept of a Community audiovisual area and the principles of an internal market without frontiers”. The judge went on to state that such actions raised serious policy questions of the paramount importance to the European single market.  On this basis, the case would be referred to the ECJ for a more cost-effective and expeditious resolution than allowing the matter to go to appeal.

The fundamental issue currently being considered by the ECJ is whether the decoder cards lawfully issued in one territory could lawfully be traded cross-border and used in another territory without infringing the rights of a copyright holder (such as the FA Premier League in this case).

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© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.