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08 September 2008
After missing the Euro 2008 football championships, English football has finally made it to Europe - but not as it would have liked. In a judgment of nearly 400 paragraphs, the High Court has referred to the European Court of Justice (ECJ) a host of questions relating to copyright, copy control devices, conditional access, satellite television and the free movement of goods. The case leading to the judgment was brought by the company that runs Premier League football in England, the Football Association Premier League Limited. The defendants are suppliers of foreign satellite decoder cards and bar owners who bought such cards in order to show Premier League football matches in their bars.
Premier League football matches are filmed by Sky TV and the core content of these broadcasts, known as the 'clean live feed', is modified by the Premier League. This creates a programme called the 'world feed', which is transmitted to broadcasters in other jurisdictions.
Licence agreements allow broadcasters to broadcast the live world feed supplied from the United Kingdom. The broadcasts by licensees are made via satellite using encrypted signals and customers must purchase decoder cards to enable them to watch live matches. Licensees are permitted to sub-license their rights and the actions in this case relate to live satellite transmissions made by sub-licensees in Greece, the Middle East and North Africa (the latter two transmitting from Italy).
The Premier League claims that genuine decoder cards for the sub-licensees' transmissions are piratical anti-circumvention devices when used in the United Kingdom because they allow users, such as the bar owners, to access the television transmission that is exclusively licensed to Sky TV in the United Kingdom, but for a fraction of the price that Sky TV charges.
The Premier League also claims that by showing the foreign transmissions, the bar owners are infringing the copyright in various works embodied in the television programmes because copies of the transmission are made in the satellite receiver box as part of the technical process of decrypting the satellite signal.
The court referred the following issues to the ECJ and gave its own answers to six of the eight issues referred:
The court offered preliminary answers to six of the questions as follows:
The court did not give provisional answers to the seventh and eighth questions concerning the free movement of goods and Article 81, although it made comments suggesting that, in its view, the free movement of decoder cards should be allowed.
In addition to the many European law points at issue, the case also involved decisions on various points of UK law, such as: (i) whether the broadcasting of music played in stadia when the footballers line up before kick-off is incidental and therefore not an infringement of copyright; and (ii) the scope of the defence to infringement in Section 72 of the Copyright Designs and Patents Act, by which a broadcast shown in a public place without the public paying for admission is not an infringement of the broadcast, although it may infringe other copyright-protected rights embodied in the broadcast.
The ECJ is unlikely to decide all eight points if it can avoid doing so. Its usual approach, where possible, is to pick a threshold issue, decide that and then state that the remaining points fall away. The threshold issues here are the question of what constitutes an illicit device under the Conditional Access Directive and the issue of free movement. The judge recognized that the two points are intricately linked: there cannot be free movement of an illicit device, so the points are in many ways the opposite faces of the same coin. There is reason to expect that the ECJ will confine itself to deciding the illicit device point and will agree with the trial judge that a foreign sub-licensee’s decoder card is not illicit.
For further information on this topic please contact Andrew Hobson at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000) or by fax (+44 20 3060 7000) or by email (email@example.com).
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