Football Association Premier League Ltd v QC Leisure & Ors

A court applying the Marleasing principle must interpret domestic legislation, so far as possible, consistently with a directive. That duty does not permit the court to rewrite clear statutory language, produce major unforeseen changes to the statutory scheme, or assume Parliament’s legislative role. Section 72(1)(c) of the Copyright, Designs and Patents Act 1988 therefore remained applicable to the showing or playing in public of a broadcast to a non-paying audience. Because that activity can also constitute communication to the public under section 20, the defence extended to the section 20 claim. The court rejected an implied restriction to section 19(3), and also rejected an analogue-only restriction. The domestic provision consequently created a wider exception than the directive allowed, but that mismatch could not be corrected by judicial interpretation.

Three related claims concerned the showing in public houses of Premier League matches received through foreign satellite decoder cards. Following the original trial, Kitchin J considered the communication-to-the-public issue in [2008] EWHC 1411 (Ch) and referred questions to the Court of Justice. The Court of Justice answered the principal question in Case C-403/08, holding that transmission of broadcast works through television screens and speakers to customers in a public house could constitute communication to the public.

On the resumed trial, Kitchin LJ held that section 20 was an effective implementation of Article 3(1) of the Copyright Directive, but that section 72(1)(c) provided a complete defence to infringement of film copyright under both sections 19 and 20. FAPL appealed that part of the order. The central issue was whether section 72(1)(c) could be given a conforming interpretation limiting the defence to section 19(3), or to analogue transmissions.

Etherton LJ gave the judgment of the court, with Lewison and Munby LJJ agreeing. The appeal was dismissed.

1. Communication to the public. The court accepted that transmission of broadcast works through television screens and speakers to customers in public houses fell within Article 3(1) of the Directive 2001/29/EC. Section 20 was therefore capable of covering the publicans’ electronic transmission of the works. The activities also constituted showing or playing works in public under section 19(3), so there was an overlap between sections 19 and 20.
2. Conforming interpretation. The Marleasing principle requires domestic legislation to be interpreted, so far as possible, in the light of a directive’s wording and purpose, taking the whole body of domestic law and recognised interpretative methods into account. It does not permit an interpretation contra legem or one which changes the substance of clear provisions, produces major unforeseen consequences, undermines statutory coherence, or encroaches on Parliament’s legislative role. The court applied that limit to the proposed reading of section 72(1)(c). ([1990] ECR 4135)
3. Section 72. The opening words of section 72(1) were clear and unambiguous. Read with the legislative intention to preserve existing copyright exceptions as far as possible, they covered any showing or playing in public of a broadcast to an audience that had not paid for admission. Limiting section 72(1)(c) to section 19(3) would have materially altered the statutory regime, affected pre-recorded films and other public venues, and undermined section 72(1B).
4. Other arguments. Section 34(2) did not assist FAPL because it defines whether an act is a restricted act under section 19(3), whereas section 72(1) addresses whether a restricted act infringes copyright. An analogue-only limitation was also impermissible: Article 5(3)(o) concerned cases of minor importance, the Government had not considered such a distinction, and no rational basis for it had been shown. The respondents therefore had a defence under section 72(1)(c), although only because domestic law provided a wider exception than Article 5 permitted.

• Court of Appeal (Civil Division): FAPL’s appeal against the relevant part of Kitchin LJ’s order was dismissed in [2012] EWCA Civ 1708.
• Chancery Division: The related actions were tried and later resumed after a reference to the Court of Justice. The original judgment is reported at [2008] EWHC 1411 (Ch). Kitchin LJ held on the resumed trial that section 20 applied to the publicans’ transmissions, but section 72(1)(c) provided a defence.