Football Association Premier League Ltd v QC Leisure; Karen Murphy v Media Protection Services Ltd (Cases C-403/08 and C-429/08)
| Jurisdiction | England & Wales |
| Judge | THE RT HON LORD JUSTICE KITCHIN,Lord Justice Kitchin |
| Judgment Date | 03 February 2012 |
| Neutral Citation | [2012] EWHC 108 (Ch) |
| Docket Number | Case No: HC06 CO4418, HC07 C00082, HC07 CO1749 |
| Court | Chancery Division |
| Date | 03 February 2012 |
[2012] EWHC 108 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Case No: HC06 CO4418, HC07 C00082, HC07 CO1749
Mr James Mellor QC, Ms Helen DaviesQC, Ms CharlotteMay and Mr James Whyte (instructed by DLA Piper LLP) for the First, Second and Third Claimants
Mr James FlynnQC (instructed by Allery & Overy LLP) for The Fifth Claimant
Mr Martin HoweQC, Mr Andrew Norris and Mr Thomas St Quintin (instructed by Smithfield Partners) on behalf of Mr Richardson, QC Leisure,Mr Raval, Mr Greenslade and SR Leisure Ltd and (instructed by Molesworths Bright Clegg) on behalf of the other Defendants
Ms Sarah Lee and Mr Simon Malynicz (instructed by The Treasury Solicitor) for the Intervenor
Hearing dates: 15/16 December 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This judgment follows the resumption of the hearing of the trial of these actions. In my judgment of 24 June 2008 ( [2008] EWHC 1411 (Ch)), I decided some issues but referred a series of questions to the Court of Justice. The Court replied by judgment of 4 October 2011 ( Case C-403/08). In its judgment, the Court also replied to questions referred in parallel proceedings in the Queen's Bench Division (Administrative Court) between Karen Murphy and Media Protection Services Ltd ( Case C-429/08).
A series of issues now fall for determination:
i) Whether any of the defendants have communicated any of the copyright works of the Football Association Premier League Ltd ("FAPL") to the public contrary to s.20 of the Copyright, Designs and Patents Act 1988, as amended, ("the CDPA"). And, if they have, whether s.72 of the CDPA provides them with a defence.
ii) Whether the defendants QC Leisure ("QC") and AV Station plc ("AV") have infringed FAPL's copyrights by authorising the infringing acts of their customers, including the defendants in the third action (the "Madden defendants").
iii) Which works were screened or played by the Madden defendants?
iv) Whether it is appropriate to grant a declaration that the defendants have infringed FAPL's copyrights and, if so, the form that any such declaration should take.
v) Whether it is appropriate to grant an injunction to restrain further infringement of FAPL's copyrights and, if so, the form any such injunction should take.
vi) Whether it is appropriate to grant a declaration reflecting the ruling of the Court of Justice on Article 81 EC (now Article 101 TFEU) by way of a declaration and, if so, the form any such declaration should take.
vii) Whether I should make an order dismissing the causes of action which have failed.
viii) Whether it is appropriate to order an inquiry or an account and, if so, the appropriate consequential directions to make.
I will address these issues in turn.
Infringement – communication to the public
At the original hearing the claimants contended that publicans (and in particular the Madden defendants) have communicated FAPL's copyright works to the public contrary to s.20 CDPA by transmitting the claimants' broadcasts, via their television screens and speakers, to the customers present in their public houses.
The defendants argued that this case was completely misconceived. Although they accepted there is a communication to the public involved in a satellite broadcast, they said that act is deemed by the terms of Directive 93/83/EEC (the Satellites and Copyright Directive) to take place solely in the Member State of transmission. That Member State was Greece in the case of the NOVA broadcasts and Italy in the case of the ART broadcasts and hence no infringement of UK copyright law could occur by reason of the act of reception taking place here.
I addressed these rival submissions at [245]-[262] of my judgment. As I explained, s.20 purports to implement Article 3 of Directive 2001/29/EC (referred to by the Court of Justice as the Copyright Directive) which, in broad terms, and so far as relevant, requires Member States to provide authors with the exclusive right to authorise or prohibit communication to the public of their works by wire or wireless means. Then, after considering the provisions of the Copyright Directive and the decision of the Court of Justice in Case C-306/05 SGAE v Rafael Hoteles [2006] ECR I-11519, I expressed a provisional view preferring the submissions of the defendants:
"262. I come then to consider how these principles should be applied in the context of the present case. Have the publicans communicated the copyright works to members of the public not present at the origin of those communications? They have plainly displayed them and played them to members of the public (subject to the discussion in the next section). The audience is far wider than the publicans and their families. But it is my provisional view they have not communicated them to the public within the meaning of Article 3. There has been no retransmission by the publicans whether by wire or otherwise. They have simply received the signal, decoded it and displayed it on a television. The only acts of communication to the public have been those of the FAPL, NOVA and ART. In short, there has been no act of communication to the public within the Directive separate from the satellite broadcast itself."
Nevertheless, recognising the issue was not clear, I referred a question to the Court of Justice asking, in essence, whether the phrase "communication to the public" in Article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house.
In answering that question, the Court of Justice observed that Article 3(1) does not define the concept of "communication to the public" and accordingly its meaning and scope has to be determined in the light of the objectives pursued by the Copyright Directive and the context in which the provision is set. In that regard, the Court noted first, that the principal objective of the Copyright Directive is to establish a high level of protection for authors and that "communication to the public" must therefore be interpreted broadly; second, given the requirements of unity of the European Union legal order and its coherence, concepts used in the various directives in the area of intellectual property should generally be interpreted as having the same meaning; and third, Article 3(1) must, so far as possible, be interpreted in a manner consistent with international law, in particular taking account of the Berne Convention and the WIPO Copyright Treaty.
The Court then explained the concept of communication in these terms:
"191. As regards, first, the concept of communication, it is apparent from Article 8(3) of the Related Rights Directive and Articles 2(g) and 15 of the Performance and Phonograms Treaty that such a concept includes "making the sounds or representations of sounds fixed in a phonogram audible to the public" and that it encompasses broadcasting or "any communication to the public".
192. More specifically, as Article 11 bis (1)(iii) of the Berne Convention expressly indicates, that concept encompasses communication by loudspeaker or any other instrument transmitting, by signs, sounds or images, covering—in accordance with the explanatory memorandum accompanying the proposal for a copyright directive ( COM(97) 628 final)—a means of communication such as display of the works on a screen.
193. That being so, and since the European Union legislature has not expressed a different intention as regards the interpretation of that concept in the Copyright Directive, in particular in Article 3 thereof (see paragraph [188] of the present judgment), the concept of communication must be construed broadly, as referring to any transmission of the protected works, irrespective of the technical means or process used."
Applying these principles to the present case, the Court held that the proprietor of a public house does effect a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment:
"195. In Case C-403/08, the proprietor of a public house intentionally gives the customers present in that establishment access to a broadcast containing protected works via a television screen and speakers. Without his intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast's catchment area. Thus, the circumstances of such an act prove comparable to those in SGAE.
196. Accordingly, it must be held that the proprietor of a public house effects a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment."
The Court then identified a second requirement, namely that it is also necessary for the work broadcast to be transmitted to a new public, that is to say, to a public which was not taken into account by the author of the protected work...
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