The Football Association Premier League Ltd v Luxton & Anor

Permission to appeal may be granted where accepted facts make it realistically arguable that an alleged unlawful arrangement restricting access to commercial decoding cards is connected with the conduct said to infringe copyright. The use of an unlicensed domestic card in commercial premises does not necessarily exclude that connection if the alleged arrangement prevented access to a commercial card. Where copyright enforcement serves both legitimate and potentially unlawful market-partitioning purposes, the appropriate remedy may require consideration of monetary relief instead of an injunction. Those issues were left for the appeal to determine.

The Football Association Premier League Limited renewed its application for permission to appeal from summary judgment given by Mrs Justice Rose in the High Court, Chancery Division, on 30 January 2014. The underlying claim concerned copyright in on-screen graphics transmitted with live Premier League broadcasts. Mr Luxton, a pub landlord, used a domestic-use decoding card to show broadcasts commercially.

The defence alleged that continuing arrangements between the copyright owner and broadcasters unlawfully restricted the availability of commercial cards outside the relevant territories, contrary to Articles 101 and/or 56 of the Treaty on the Functioning of the European Union. The central issue was whether that alleged restriction could provide a sufficient nexus with the infringement and make a defence, including a defence to the remedy sought, realistically arguable.

1. Permission granted. The renewed application was granted. The court was concerned only with whether the proposed appeal was realistically arguable, not with finally determining the copyright or competition-law issues.
2. Copyright context. The decision of the European Court of Justice in the joined cases reported at [2012] FSR 1 was treated as showing that showing live television broadcasts of football matches, including copyright works contained in the broadcasts, in public was likely to infringe copyright in those works. A domestic-use card permitted viewing at home, not commercial exhibition. Use of such a card at a pub was therefore unlicensed.
3. Sufficient nexus. The High Court had accepted, for the summary judgment application, that foreign broadcasters might still be acting as though they need not supply commercial cards for use outside their territories. If the defendant could not obtain a commercial card because of a continuing unlawful agreement between the claimant and broadcasters, a sufficient nexus between that agreement and the infringing conduct might realistically be established. The case therefore raised a novel and arguable question.
4. Remedy. The court also considered it realistically arguable that the alleged illegality could affect the remedy. An injunction might not be the appropriate relief; an order requiring payment of the difference between the domestic and commercial licence prices was identified as a possible alternative. No final view was expressed.
5. Further order. The appeal was directed to be heard by three Lord Justices, including one with intellectual-property experience and another Chancery Lord Justice.

• Court of Appeal (Civil Division): On 11 February 2015, the renewed application for permission to appeal was granted under [2015] EWCA Civ 1069. The appeal was to be heard by three Lord Justices.
• High Court (Chancery Division): Mrs Justice Rose gave summary judgment for the Football Association Premier League Limited on 30 January 2014.