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

Showing broadcast works on television screens and speakers in a public house can constitute communication to the public by electronic transmission. A conforming interpretation of domestic legislation may depart from the natural meaning of statutory language, but it cannot contradict a fundamental feature or the plain legislative intention of the enactment. The free public showing defence in section 72(1)(c) of the Copyright, Designs and Patents Act 1988 applies to any copyright in a film included in a broadcast. It therefore defeats a claim under section 20 as well as section 19 where the audience has not paid for admission. Statutory declarations should identify the specific works and acts established, and any injunction should be framed with equivalent precision.

The claimants, including Football Association Premier League Ltd, sued suppliers and users of satellite decoder cards for copyright infringement arising from the screening of Premier League broadcasts in public houses. Following the earlier judgment, the court referred questions to the Court of Justice, which gave judgment in Case C-403/08 and also answered questions in parallel proceedings concerning Karen Murphy.

The resumed trial concerned communication to the public under section 20, the scope of the section 72 defence, authorisation by decoder-card suppliers, the works shown by particular defendants, declaratory and injunctive relief, the effect of Article 81 EC, and an inquiry or account.

1. The court held that publicans communicated FAPL’s relevant copyright works to a new public when they intentionally transmitted broadcasts through television screens and speakers. The expression “by electronic transmission” in section 20 was apt to include the use of electronic television and audio equipment. Alternatively, that construction was required by the Marleasing obligation to interpret domestic law consistently with the Copyright Directive.

2. Sections 19 and 20 overlap. The transmission of broadcasts in public houses constituted both the playing or showing of films in public and communication to the public. Section 72(1)(c), however, states that showing or playing a broadcast to an audience who have not paid for admission does not infringe any copyright in a film included in it. Its wording is not confined to infringement under section 19.

3. The court rejected a proposed conforming interpretation limiting section 72(1)(c) to analogue uses. The provision was clear, its legislative history confirmed Parliament’s intention to protect films shown in public houses, and the proposed construction would recast its substance and contradict the grain of the legislation. The defendants therefore had a complete defence to the film-copyright claims under section 20.

4. The court maintained its earlier finding that QC and AV authorised infringing acts by supplying decoder cards to publicans for the purpose of viewing the programming in their premises. The existence of some legitimate uses did not justify revisiting that conclusion.

5. The court declined to reopen its factual findings about which matches were shown and whether the Anthem was played aloud. The declarations were to identify the specific works and acts of infringement established against each defendant. An inquiry or account was ordered, with transfer to the Patents County Court. The court was disposed to accept an undertaking concerning the Anthem instead of an injunction, and granted a limited Article 81 declaration preserving FAPL’s copyright rights.

This was a resumed first-instance trial. The court had previously decided certain issues in [2008] EWHC 1411 (Ch) and referred questions to the Court of Justice, which replied in Case C-403/08. The present judgment determined the outstanding issues.