Football Association Premier League Ltd & Ors v QC Leisure & Ors

The court provisionally preferred the view that the Conditional Access Directive targets pirate devices originating outside the legitimate service provider, rather than lawful decoder cards used outside their intended territory. It also provisionally considered that a programme supplier may provide a protected service alongside a downstream broadcaster, although the precise questions required a reference to the Court of Justice. Under domestic copyright law, transient fragments successively stored in a decoder do not cumulatively form a substantial part of a work. Section 72 protects free public showing or playing of broadcasts, films and relevant sound recordings, but does not extend to underlying musical works. Supplying a decoder card for viewing broadcasts may constitute authorisation of resulting infringements.

Three consolidated actions concerned the importation, supply and use in United Kingdom pubs of Greek NOVA and North African ART satellite decoder cards carrying live Premier League football. The claimants relied on Copyright, Designs and Patents Act 1988, the Conditional Access Directive, copyright infringement provisions and European Union free-movement and competition law.

The defendants contended that the cards were lawfully issued by foreign broadcasters and that territorial restrictions were incompatible with the single market. The judgment determined extensive factual and domestic copyright issues, but identified fundamental questions concerning the interpretation and interaction of several European instruments. The central issue was whether the claims could lawfully control cross-border use of authorised decoder cards and related broadcasts.

1. Conditional access. The judge provisionally preferred the defendants’ construction of “illicit device”. The Directive was directed principally to pirate devices manufactured or marketed without the legitimate service provider’s authority. A lawful device did not become illicit merely because a dealer intended it to be used in another Member State. The questions were not acte clair and were referred to the Court of Justice.
2. Protected services. The judge provisionally considered that FAPL could provide a protected television broadcasting service comprising the World Feed, notwithstanding NOVA’s and ART’s editorial additions and scheduling. NOVA and ART could also provide separate protected services. FAPL would therefore have a potential cause of action if the cards were illicit devices.
3. Copyright. Four frames stored in a decoder were not a substantial part of the films. Successive transient copies could not be aggregated where each was destroyed as part of the process. The same conclusion applied to transient copies on television screens. Action replays nevertheless reproduced substantial parts of Match Films because they captured incidents of particular interest. The incidental-inclusion defence succeeded for the Anthem during the player line-up.
4. Section 72. The defence applied to the free public showing or playing of the broadcasts and included films embodied in them. It did not protect the underlying musical work in the Anthem. The court declined to rewrite the clear statutory language by implication.
5. Other copyright issues. The judge provisionally considered that publicans had not communicated the works to the public within the meaning of Article 3 of the Copyright and Information Society Directive, since they received, decoded and displayed the signal without retransmitting it. Supplying decoder cards constituted authorisation of any infringing acts for which the cards were supplied. Mr Richardson and Mr Chamberlain were personally liable; personal liability was not established against Mr Raval.
6. Reference. Fundamental questions concerning the Conditional Access Directive, copyright, free movement and Article 81 EC were referred, or ordered to be referred, to the Court of Justice. Final disposal of the claims awaited that ruling.

Not an appeal. The judgment records a prior application for summary judgment determined by the Chancery Division in [2008] EWHC 44 (Ch), but the present decision was at first instance and referred questions to the Court of Justice.