The Football Association Premier League Ltd v British Telecommunications Plc and Others

JurisdictionEngland & Wales
JudgeMr Justice Arnold
Judgment Date13 March 2017
Neutral Citation[2017] EWHC 480 (Ch)
Docket NumberCase No: HC-2017-000458
CourtChancery Division
Date13 March 2017

[2017] EWHC 480 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Rolls Building

Fetter Lane, London, EC2A 1NL

Before:

Mr Justice Arnold

Case No: HC-2017-000458

Between:
The Football Association Premier League Limited
Claimant
and
(1) British Telecommunications Plc
(2) Ee Limited
(3) Plusnet Plc
(4) Sky Uk Limited
(5) Talktalk Telecom Limited
(6) Virgin Media Limited
Defendants

Ian Mill QC (instructed by DLA Piper UK LLP) for the Claimant

Jaani Riordan (instructed by in-house solicitors) for the First, Second, Fourth and Sixth Defendants

The Third and Fifth Defendants did not appear and were not represented

Hearing date: 8 March 2017

Judgment Approved

Mr Justice Arnold

Introduction

1

The Claimant ("FAPL") is the governing body of the football competition known as the Premier League ("the Premier League"). FAPL owns the copyright in films comprising television footage of all Premier League matches, and in artistic works which appear within that footage. The Defendants are the six main retail internet service providers ("ISPs") in the United Kingdom. By this claim FAPL seeks an injunction against the Defendants pursuant to section 97A of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"), which implements Article 8(3) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ("the Information Society Directive"), requiring the Defendants to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of Premier League footage to UK consumers.

2

In some respects the application is similar to one by FAPL which led to a blocking order being made in respect of a website known as FirstRow Sports for the reasons I gave in Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch), [2013] ECDR 14 (" FAPL v Sky"). The application differs in a number of respects, however, and in particular in that it is directed at streaming servers rather than a website. This is the first time that such an order has been sought in respect of streaming servers.

3

Although FAPL is formally the only applicant, the application is supported by the following other rightholders:

i) British Broadcasting Corporation and BBC Worldwide Ltd;

ii) DFL Deutsche Fuβball Lega GmbH;

iii) Liga Nacional de Fútbol Professional;

iv) The Football Association Ltd;

v) The Scottish Premier League Ltd;

vi) The Football League Ltd;

vii) England and Wales Cricket Board Ltd;

viii) PGA European Tour;

ix) The Professional Darts Corporation Ltd; and

x) Rugby Football Union.

4

On 8 March 2017 I made an order substantially in the terms which had been agreed between the parties ("the Order"). This judgment contains my reasons for doing so.

The law

5

The law with respect to the making of website blocking orders under section 97A of the 1988 Act is now fairly well established. It has recently been reviewed by the Court of Appeal in the closely related context of the making of blocking orders under section 37(1) of the Senior Courts Act 1981 and Article 11 third sentence of European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights ("the Enforcement Directive") in Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658, [2017] Bus LR 1. Further background is contained in my judgment at first instance in that case ( [2014] EWHC 3354 (Ch), [2015] Bus LR 298), and in the case law referred to therein. I shall take that material as read.

FAPL and its rights

6

I described FAPL and its rights in FAPL v Sky at [8]–[13]. Since then, there have been certain changes. In particular, the Clean Live Feed for each match is now recorded prior to onward transmission and so the FAPL now claims copyright in those films. In addition, FAPL now claims copyright in new logos and graphics referred to as the Logos and Dixonbaxi Graphics. I am satisfied by the evidence filed by FAPL that copyright subsists in the various copyright works relied upon by FAPL ("the Works") and that FAPL owns those copyrights. The other point to note is that the value of FAPL's rights has increased yet further, being licensed for £1.7 billion annually in the UK alone.

The Defendants

7

The Defendants are not merely ISPs. Some of them have an interest in the subject-matter of FAPL's rights. More specifically:

i) The First Defendant ("BT") is one of two exclusive licensees of broadcasting and internet transmission rights for Premier League footage in the UK.

ii) The Second Defendant ("EE") is a wholly owned subsidiary of BT.

iii) The Third Defendant ("Plusnet") is also a wholly owned subsidiary of BT. It has not previously been the subject of an order under section 97A, but has similar blocking technology to BT and EE.

iv) The Fourth Defendant ("Sky") is the other exclusive licensee of Premier League footage in the UK.

v) The Fifth Defendant ("TalkTalk") retransmits licensed channels containing Premier League footage to its subscribers.

vi) The Sixth Defendant ("Virgin") likewise retransmits such channels to its subscribers.

8

FAPL's application is supported by BT, EE, Sky and Virgin, who have appeared by counsel for that purpose. BT, Sky and Virgin have also filed evidence in support of the application. In addition, Plusnet has confirmed in writing that it supports the application. TalkTalk does not support the application, but it has confirmed in writing that it does not oppose the application. All of the Defendants have been involved in negotiations over the terms of the Order, with the result that the wording of the Order was agreed. Since the Order affects third parties who are not before the Court, however, counsel for FAPL rightly accepted that the fact that the making of the Order was either supported or not opposed by the Defendants did not absolve the Court from the responsibility of considering whether the Order was justified.

Confidentiality

9

Both FAPL on the one hand and BT, Sky and Virgin on the other hand have sought confidentiality in respect of both parts of their evidence and parts of the Order. In the case of the evidence, confidentiality is claimed on two main grounds. The first is that some of the evidence reveals commercially sensitive information concerning such matters as the impact of live streaming on FAPL and the resources deployed by some of the Defendants to implement blocking measures. The second is that disclosure of some of the evidence would facilitate infringement of FAPL's rights and/or circumvention of the Order. In the case of the Order, confidentiality is claimed on the second ground. Originally FAPL's claim to confidentiality was cast too broadly, but at the hearing FAPL narrowed that claim. I am satisfied that, as recast and subject to one point addressed below, the claim to confidentiality is well founded. Accordingly, the Order contains certain confidentiality provisions, and in particular an order under CPR rule 31.22, in respect of the confidential parts of the evidence.

Background to the present application

10

This application seeks to combat the growing problem of live Premier League footage being streamed without the consent of FAPL (or its licensees) on the internet. Since FAPL v Sky, this problem has been exacerbated in five main ways.

11

First, consumers are increasingly turning to set-top boxes, media players (such as the popular Amazon Fire TV Stick) and mobile device apps to access infringing streams, rather than web browsers running on computers. This means that traditional blocking orders (targeting websites) will not be able to prevent the growing majority of infringements, because these devices do not rely upon access to a specific website in order to enable consumers to access infringing material. Instead, such devices can connect directly to streaming servers via their IP addresses.

12

Secondly, the skill and effort required to find and use such devices and apps to access infringing content has fallen dramatically. Devices such as set-top boxes and media players are easy to connect to domestic televisions. Software to access suitable streams (in particular, software known as Kodi together with third-party add-ons) has become much easier to find and install. Indeed, it is increasingly easy to purchase set-top boxes and other devices which are already loaded with such software. Moreover, sources of infringing content often update automatically.

13

Thirdly, it is now possible to access a large number of high-quality infringing streams of footage of each Premier League match.

14

Fourthly, there is evidence that, regrettably, a significantly higher proportion of UK consumers believes that it is lawful to access unauthorised streams using such devices and software than believes that it is lawful to access unauthorised content via file-sharing websites.

15

Fifthly, the streaming servers used to make available infringing streams to the public have increasingly been moved to offshore hosting providers who do not cooperate with rightholders' requests to take down infringing content either at all or in a timely manner. A timely response is important in the case of Premier League matches because, to be effective, any intervention must occur during the course of a match. The operators of streaming servers regularly change the IP addresses from which the servers operate.

16

As a result of these factors, there is increasing evidence of football fans turning to streaming devices which access infringing streams as a substitute for paid subscriptions to services such as those offered by Sky and BT. This undermines the value of FAPL's rights and, if unchecked, is likely to reduce the revenue returned by FAPL to football clubs,...

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