Premier League and Sky resume prosecutions over foreign decoder cards
The Premier League and BSkyB have begun a campaign of prosecution against pubs using foreign decoder cards to screen Premier League football matches.
The move comes after a judgment earlier this month in which the Premier League won a copyright ruling in the High Court against a Brit that used non-UK decoder cards to show games.
Prior to that, a victory for Portsmouth pub licensee Karen Murphy in the Court of Justice of the European Union (CJEU), who was prosecuted after she bought a decoder card enabling her to show Greek broadcasts of FA Premier League matches in her pub rather than Sky's, cast doubt on whether or not the practice was now legal.
But Andrew Nixon, sports lawyer at Thomas Eggar, warned that, despite Murphy's victory, the situation was not that simple: "There was a general assumption following the ruling handed down by the CJEU in the Karen Murphy case that pub landlords had a carte blanche to show Premier League matches. That was never the case, because the intellectual property issue was never that clear-cut," he said.
"It will be recalled that the CJEU also ruled that ‘additionals', such as opening video sequences, the Premier League music, certain graphics and pre-recorded highlights did fall within a category protected by copyright, which on the face of it has to be correct. That in itself created a problem for publicans wishing to use (or continuing to use) foreign decoders, in that they would need the permission of the Premier League to use these copyrighted works.
"The High Court has now reviewed the CJEU's decision in the context of English copyright law and has (as anticipated) declared that the contractual obligations contained in exclusive licensing agreements (which prohibited the supply of foreign decoder cards) from other member states should be prohibited in line with Article 101 of the Treaty on the Functioning of the European Union (TFEU).
"As also anticipated, the declaration did not restrict the Premier League's rights under the Copyright Design & Patents Act (CDPA) and that the communicating of broadcast works to the public via the foreign decoders (without permission) infringes the Premier League's copyright, but that section 72 (1) (c) of the same act provides a defence when members of the public have not paid admission to view the broadcast, as would be the case with pubs."
There was some good news in that the High Court refused to grant the Premier League an injunction to prevent future copyright infringement, although the Premier League can still use its copyright in the parts of the broadcast that contain "additionals" to bring individual actions against publicans.
Nixon added: "Whilst that will not be especially easy, as to get an injunction against individuals the Premier League must be able to precisely identify the works that were being infringed, the Premier League has developed its content further to uphold its ownership of the material. It is also unsurprising that, in order to lay down a marker and serve as a warning to others, the Premier League appears determined to take early steps to enforce against individuals it can identify as infringing those rights."
ALMR warns ECJ ruling is not a green light to start using foreign decoder cards >>
BBPA welcomes ECJ judgment on cheap football coverage >>
EU rules pubs and bars can show cheap foreign football coverage >>
By Neil Gerrard
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