Scottish Professional Football League Limited V. Lisini Pub Management Co Limited
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Kingarth,Lady Paton |
| Judgment Date | 15 November 2013 |
| Neutral Citation | [2013] CSIH 97 |
| Date | 15 November 2013 |
| Docket Number | A278/07 |
| Court | Court of Session |
| Published date | 15 November 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 97 | |
| Lady Paton Lord Bracadale Lord Kingarth | A278/07 OPINION OF THE COURT delivered by LADY PATON in the cause SCOTTISH PROFESSIONAL FOOTBALL LEAGUE LIMITED Pursuers and Reclaimers; against LISINI PUB MANAGEMENT CO LIMITED Defenders and Respondents: _______________ |
Pursuers and reclaimers: Lake QC; Harper Macleod LLP
Defenders and respondents: McIlvride; TLT Scotland Limited
15 November 2013
Introduction[1] There are two issues in this reclaiming motion. First, whether the Lord Ordinary was correct to conclude that the defenders' written undertaking not to broadcast Scottish Premier League football matches on TV screens in their pubs on Saturday afternoons ceased to have effect following upon a decision by the European Court of Justice (ECJ) such that the pursuers were not entitled to the perpetual interdict sought in their principal action; and secondly, whether the Lord Ordinary was correct to hold that the defenders' averments in their counterclaim, seeking declarator of a breach of article 101 of the Treaty on the Functioning of the European Union (TFEU) together with damages, were sufficiently relevant for a proof before answer.
[2] By an interlocutor dated 25 March 2013, the Lord Ordinary (Lord Woolman) dismissed the principal action, and refused to dismiss the counterclaim. He put the case out By Order to discuss further procedure. The pursuers then reclaimed.
Article 101 of the TFEU[3] Article 101 of the TFEU (whose precursor was article 85 of the Treaty of Rome) provides:
"1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment ...
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void ..."
Section 298 of the Copyright, Designs and Patents Act 1988[4] Section 298 of the Copyright, Designs and Patents Act 1988 (the 1988 Act) provides:
"(1) A person who -
(a) makes charges for the reception of programmes included in a broadcasting service provided from a place in the United Kingdom or any other Member State,
(b) sends encrypted transmissions of any other description from a place in the United Kingdom or any other Member State, ...
is entitled to the following rights and remedies.
(2) He has the same rights and remedies against a person -
(a) who -
(i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,
(ii) has in his possession for commercial purposes, or
(iii) installs, maintains or replaces for commercial purposes, any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so ...
as a copyright owner has in respect of an infringement of copyright [in other words, declarator, interdict, damages etc]"
Background[5] The pursuers hold broadcasting rights to Scottish Premier League matches. They grant licences authorising the broadcasting of matches in the UK and abroad, with the exception of live matches on a Saturday afternoon. That restriction implements a rule of the Union of European Football Associations (UEFA) which aims to encourage attendance at matches and to promote interest in sport in young people.
[6] In 2006 and 2007 the pursuers granted broadcasting rights, via two intermediaries, to a Polish television company ("Polsat"). The broadcasting chain was as follows: the pursuers provided the signal to TWI (UK) Ltd, who relayed it to Trans World International Inc, who passed it to Polsat. A contract was in place for each link in the chain. Polsat broadcast by satellite. Their customers accessed the signal by purchasing a decoder device and a smart card from an associated company, Cyfrowy Polsat (CP).
[7] The defenders own and run three pubs in the west of Scotland. They purchased the decoder device and smart card from CP on standard terms and conditions. Clause 4.2 of the conditions restricted the geographical area of the contract. It stipulated that "making use of the offer is possible solely in the territory of the Republic of Poland". However on a Saturday afternoon on 18 November 2006, the defenders used the Polsat signal to show a screening of a live Scottish Premier League football match in their Angels pub in Uddingston.
[8] The pursuers learned of the live match being shown in the defenders' pub. They sent the defenders a letter dated 24 November 2006 (which the defenders said they had not received). That letter stated inter alia:
"[The pursuers] have evidence that you have received a live broadcast of a APL football match broadcast on [Polsat] and shown this broadcast in Angels, being the SPL match between Celtic FC and Inverness Caledonian FC on Saturday 18 November 2006.
Access to such broadcasts is limited to people outside the United Kingdom. You therefore are not entitled to have access to these broadcasts.
To obtain access to these broadcasts to which you are not entitled you have made use of decoding apparatus, which you possess. That apparatus is licensed for use only in Poland. Its use anywhere else to obtain access to broadcasts to which you are not entitled is unauthorised ...
Possession of such apparatus for commercial purposes is unlawful in terms of section 298 of the [1988 Act]. Use of that apparatus may be a criminal offence under section 297 of that Act. On conviction for that offence you may be fined up to £5,000.
Because your actings are in breach of section 298 of the Act, you are in the same position as someone who has infringed copyright. Action may be taken against you. That action may include seeking orders from a court for interdict, interim interdict, delivery of the apparatus in question, payment of damages, payment of additional damages and an accounting for the profits that you have made in using this apparatus. One or more of these remedies may be sought...
[The pursuers are] entitled under the Act to seek such remedies against you. They may report your use of the decoding apparatus to the procurator fiscal. They may also report it to the licensing authorities and argue that it indicates that you are not a fit and proper person to hold a liquor licence.
To avoid action being taken, you must immediately cease showing the broadcasts and provide an undertaking that you will hand over the decoding apparatus and not show the broadcasts in the future ... We attach a draft undertaking. To provide a suitable undertaking, please complete and return the undertaking to us by return.
In the event that no undertaking is given, court proceedings may be commenced against you without further notice. We will seek orders that you be liable for the expenses of such proceedings ..."
[9] Subsequently, on two Saturday afternoons (2 and 23 December 2006) the defenders showed further live Scottish Premier League football matches, sourced from Polsat. The pursuers then raised an action in Hamilton Sheriff Court seeking delivery of the defenders' decoder device and smart card, together with interdict, and count and reckoning. The action was based upon an alleged infringement of the 1988 Act.
[10] Before the hearing of a motion for interim interdict, Lisa Wishart, one of the defenders' directors, signed an undertaking on behalf of the defenders dated 9 January 2007, in the following terms:
"Dear Sir,
Undertaking
I, Lisa Wishart, director and authorised signatory of Lisini Pub Management Co Limited (registered number SC262192, hereinafter referred to as "the Company"), which company is licensee of Angels, 114 Main Street, Uddingston, acknowledge that within said premises apparatus has been used to access programmes included in broadcasts by Telewizja Polsat SA ("Polsat") (1) on the afternoon of 18 November 2006 (Celtic v Inverness Caledonian Thistle live) (2) on the afternoon of 2 December 2006 (Celtic v Aberdeen live) and (3) on the afternoon of 23 December 2006 (Celtic v Falkirk live).
I am now aware that the apparatus which has been used by the Company to access the programmes is licensed only for use in Poland and not in the United Kingdom. I am now aware that access to these broadcasts is limited to people outside the United Kingdom and that I am not entitled to access programmes included within them. I am now aware that possession of such apparatus for commercial purposes is unlawful in terms of section 298 of the Copyrights, Designs and Patents Act 1988 and that use of that apparatus may be a criminal offence under section 297 of that Act.
On behalf of the Company I undertake that in future the Company will not purchase, hire or otherwise obtain, either on its own account or for any other person, any apparatus designed or adapted to permit access to programmes featuring live Scottish Premier League football matches included in a broadcasting service in a situation where there is no agreement with the broadcaster permitting the Company or such other person to have such access.
On behalf of the Company I undertake that in future the Company will not either on its own behalf or on behalf of any other person, use, cause to be used or permit to be used in any premises any apparatus designed or adapted to permit access to programmes featuring live Scottish Premier League football matches included in a broadcasting service in a situation where there is no agreement with the broadcaster permitting the Company...
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