Football Association Premier League Ltd v QC Leisure (C-403/08 C-429/08)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE KITCHIN,MR. JUSTICE KITCHIN |
| Judgment Date | 24 June 2008 |
| Neutral Citation | [2008] EWHC 1411 (Ch) |
| Docket Number | Cases No: HC07 C04418 and HC07 C00082 and HC07 C01749 |
| Court | Chancery Division |
| Date | 24 June 2008 |
[2008] EWHC 1411 (Ch)
THE HONOURABLE MR JUSTICE KITCHIN
Cases No: HC07 C04418 and HC07 C00082 and HC07 C01749
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Mellor QC, Mr Nicholas Green QC, Miss Charlotte May, Mr Aidan Robertson and Mr James Whyte instructed by DLA Piper UK LLP on behalf of the Claimants
Mr Martin Howe QC, Mr Andrew Norris, Mr Thomas St Quintin and Mr StephenVousden instructed by Molesworth Bright Clegg on behalf of AV Station Plc and Mr Chamberlain and OBG Cameron Banfill LLP on behalf of the other Defendants
Hearing dates: 15, 17,18, 21 – 25, 28 – 30 April and 1 – 2 May, 5 June 2008
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
These three actions concern the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complain that the dealing in and use of such cards in the UK involves an infringement of their rights under s.298 of the Copyright Designs and Patents Act 1988, as amended, (“the CDPA”) and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage.
The Premier League is the leading professional football league competition for football clubs in England. The first claimant (“FAPL”) is the vehicle through which the 20 Premier League clubs operate the competition. Each of those clubs owns one share in FAPL.
FAPL's activities include organising the filming of Premier League matches and licensing the rights to broadcast them. The exclusive rights to broadcast the live matches are divided territorially and by three-year terms. The evidence in the actions before me relates to live broadcasts for the term that covered the 2004/5, 2005/6 and 2006/7 seasons. However, the claimants seek relief in respect of future seasons too.
Licensees of live broadcasts are permitted to sub-license their rights, and the claims in these actions relate to live satellite transmissions made by sub-licensees in Greece, the Middle East and North Africa.
In Greece, the sub-licensee was (and remains) the second claimant (“NetMed”). Matches are broadcast on “SuperSport” channels on the “NOVA” platform, which is owned and operated by the third claimant. The second and third claimants are under the same ultimate ownership, and are collectively referred to as “NOVA”. Reception of SuperSport channels is enabled by a NOVA satellite decoder card.
In the Middle East and North Africa, the sub-licensee was (but is no longer) a holding company called Arab Media Corporation (“AMC”). Matches were broadcast on channels produced by Arab Radio and Television Network (“ART”), a subsidiary of AMC, and transmission of the signals was handled by another AMC subsidiary called Jordan Media City (“JMC”). Reception of ART sports channels is enabled by an ART or “Arabesque” (collectively “ART”) satellite decoder card.
In the UK, the exclusive licensee for UK live broadcasts was (and remains) BSkyB Ltd (“Sky”).
The claimants say that the practice of licensing sports broadcast rights on a territorial basis is both justifiable and well established. However, it is seriously threatened by the activities of those who deal in foreign decoder cards. In summary, if a pub or a bar in the UK wishes to screen English Premier League football, the publican can at present take one of two routes. He can take out a commercial subscription from Sky, which costs several thousands of pounds a year, depending on the size of the pub or bar; or he can buy a cheaper foreign decoder card and decoder box, possibly intended for domestic use, from an unauthorised dealer. For example, NOVA cards and ancillary equipment can be acquired for about £700 a year. The effect of these activities is, say the claimants, extremely serious. They undermine the exclusivity, and hence the value, of the rights licensed in any particular territory. Whichever broadcaster sells the cheapest decoder cards has the potential to become, in practice, the EU wide broadcaster with the result that broadcast rights in the EU will have to be licensed on an EU wide basis. This will result in a serious loss of revenue both to the FAPL and other broadcasters and so undermine the viability of the services they provide.
Consequently the claimants have brought what they see as three test cases. Two of the actions are brought against suppliers of equipment and satellite decoder cards to pubs and bars, which enable the reception of non-Sky satellite channels (including NOVA or ART channels) that carry live Premier League matches. The third action is against licensees or operators of four pubs that have shown live Premier League matches broadcast on ART channels.
More specifically, the defendants in the first action (HC06C04418) are QC Leisure and Mr David Richardson. It has become clear that QC Leisure is in fact the trading name of Mr Richardson. He is a supplier of satellite equipment and decoder cards, including both NOVA cards from 2006 and ART cards from 2004 to about February 2007.
The defendants in the second action (HC07C00082) are AV Station PLC (“AV”) and Mr Malcolm Chamberlain, its sole director. AV supplied NOVA decoder cards from June 2005 to February 2007 but has never traded in ART decoder cards.
The third action (the “Madden” action) (HC07C01749) relates to four pubs:
i) “The Pig & Whistle”, of which the first defendant, Michael Madden, is the licensee.
ii) “Earls”, which involves the second to fourth defendants. The owner of Earls is the fourth defendant, S.R.Leisure Ltd (“SR”). The second defendant, Sanjay Raval, is the sole director of SR. The third defendant, David Greenslade, is employed as Earls' manager and licensee, but the claimants indicated during the course of the trial that the claim is no longer pursued against him.
iii) “The Crabtree Inn”, of which the fifth defendant, Philip Houghton, is the licensee.
iv) “London House”, of which the sixth defendant, Derek Owen, is the licensee.
At each of these pubs, screening of live Premier League matches using an ART decoder card is admitted.
In these circumstances the claimants say the defendants have infringed their rights under s.298 of the CDPA by trading in or, in the case of the Madden defendants, being in possession for commercial purposes of decoder cards designed or adapted to give access to their services without authorisation. Further, the claimants contend the Madden defendants have infringed their copyrights by creating copies of the works in the internal operation of the satellite decoder and by displaying the works on screen, in each case contrary to s.17 of the CDPA, by performing, playing or showing the works in public contrary to s.19 and by communicating the works to the public contrary to s.20; moreover, the AV and QC defendants have infringed the claimants' copyrights by authorising these acts by the Madden defendants and by others to whom they have supplied decoder cards.
The defendants respond that the claim is wholly misconceived. They submit this is not a case about pirate decoder cards because all the cards in issue have been issued and placed upon the market by the relevant satellite broadcaster. Rather, they say, the case is about cross-border trade in lawful decoder cards issued by the relevant satellite broadcaster and the cross-border reception of broadcasting services within the European single market. They argue that broadcasters or programme content providers have no right to interfere with cross-border reception in an effort to divide the single market into differentially priced zones and to restrict competition between FAPL's licensees.
As will be seen, the contentions of the parties require a consideration of a number of provisions of Community law:
i) Council Directive 89/552/EEC of 3 October 1989, as amended by Directive 97/36/EC, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (the TV Without Frontiers Directive). This abolishes regulatory barriers to cross-border broadcasting by establishing a system in which broadcasts are regulated in the home country of the broadcaster and in that country only.
ii) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellites and Copyright Directive). This is relevant to the claimants' attempt to invoke national copyright law to prevent cross-border reception of satellite broadcasts.
iii) Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (the Conditional Access Directive). This is plainly the key Directive governing the alleged cause of action under s.298 of the Act, since s.298 in its present form is intended to transpose this Directive into national law. Directive 98/84/EC cross refers to Directive 89/552/EEC for the definition of television broadcasting.
iv) Directive 2001/29/EC of the European Parliament and of the Council of 22 May...
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