The Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others

JurisdictionEngland & Wales
JudgeMr Justice Arnold
Judgment Date16 July 2013
Neutral Citation[2013] EWHC 2058 (Ch)
Docket NumberCase No: HC13F02471
CourtChancery Division
Date16 July 2013

[2013] EWHC 2058 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

The Hon Mr Justice Arnold

Case No: HC13F02471

Between:
The Football Association Premier League Limited
Claimant
and
(1) British Sky Broadcasting Limited
(2) British Telecommunications PLC
(3) Everything Everywhere Limited
(4) Talktalk Telecom Limited
(5) Telefónica UK Limited
(6) Virgin Media Limited
Defendants

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

The Defendants did not appear and were not represented

Mr Justice Arnold

Introduction

1

The Claimant ("FAPL") is the governing body of the football competition known as the Barclays Premier League ("the Premier League"). As explained in more detail below, FAPL owns the copyright in recordings of 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. Between them they have a fixed line market share of some 94% of UK internet users. 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 a website known as FirstRow Sports ("FirstRow").

2

Although FAPL is formally the only applicant, the application is supported by the following other rightholders, a representative of each of which has made a witness statement in support of the application confirming that FirstRow is not licensed by that rightholder to exploit its content:

i) The Football Association Ltd;

ii) The Scottish Premier League Ltd;

iii) The Football League Ltd;

iv) Union des Associations Européennes de Football ("UEFA");

v) PGA European Tour;

vi) The Professional Darts Corporation Ltd;

vii) World Snooker Ltd; and

viii) Rugby Football Union.

Previous case law

3

In Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] Bus LR 1471 (" 20C Fox v BT") I held that the Court had jurisdiction, and that it was appropriate to exercise my discretion, to make a blocking order against the Second Defendant ("BT") with respect to a website called Newzbin2. In Twentieth Century Fox Film Corp v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch), [2012] Bus LR 1525 (" 20C Fox v BT (No 2)") I determined the terms of that order. Subsequently Vos J and I made similar orders against the other Defendants.

4

In Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14 (" Dramatico v Sky") I held that both users and the operators of website called The Pirate Bay ("TPB") infringed the copyrights of the claimants (and those they represented) in the UK. Following that judgment, five of the Defendants indicated to the claimants that they did not oppose the making of orders under section 97A of the 1988 Act in terms which had been agreed between the parties. I acceded to the claimants' application that I should make those orders for the reasons I gave in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 (" Dramatico v Sky (No 2)"). Subsequently I also made an order against the remaining Defendant in respect of TPB, again in terms agreed between the parties.

5

In EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 (" EMI v Sky") I held that both users and the operators of three websites called KAT, H33T and Fenopy infringed the copyrights of the claimants and that it was appropriate to grant blocking orders against the Defendants in respect of those websites in terms agreed between the parties.

The present application

6

The present application differs from the applications considered in the judgments referred to above in a number of respects. First, the applicant and its supporters constitute a different class of rightholder. Secondly, unlike the websites the subject of the previous applications, FirstRow is not a peer-to-peer ("P2P") file-sharing website. Rather, it is a website which facilitates access to streams of television broadcasts of sporting events. Thirdly, as a result, the issues on infringement are somewhat different.

7

As in the Dramatico v Sky and EMI v Sky cases, FAPL seeks orders in terms which have been agreed with the Defendants and the Defendants do not oppose the making of those orders. That does not absolve the Court of the responsibility of determining whether the orders sought are justified. I have considered the matter on paper.

FAPL and its rights

8

FAPL is authorised by its member clubs to license broadcasters throughout the world to provide coverage of Premier League matches. A high proportion of the revenue generated by FAPL derives from the sale of such rights. The rights are offered to broadcasters by open competitive tender for a specified territory or groups of territories and term. The rights for the United Kingdom and the Republic of Ireland are sold separately from the rest of the world. The broadcast rights for the UK alone were last auctioned for some £3.018 billion, which is by a very considerable margin the largest amount paid for sporting broadcast rights in the UK.

9

The broadcasting of Premier League matches for viewing in the UK during the "Closed Period" is restricted by Article 48 of the Statutes of UEFA. This empowers each national football association to designate a period of two and half hours in each week during which the broadcasting of football matches in that territory is prohibited. The purpose of this is to encourage attendance at football matches, and in that way to support the sport of football. The Football Association has designated 2.45 pm to 5.15 pm on Saturdays as the Closed Period in England.

10

Each Premier League match is filmed by one of three broadcasters (referred to as the "Host Broadcasters"), using between 8 and 25 cameras with built-in microphones. The live pictures and ambient sound from the stadium are referred as the "Clean Live Feed". The Clean Live Feed also includes action replays added by the Host Broadcaster's production team. These consist of recordings of pictures of incidents of particular interest ("the Action Replay Films"). The Clean Live Feed is transmitted directly to some broadcasters who have been licensed by FAPL, notably those in the UK, Republic of Ireland, United States of America and India.

11

The Clean Live Feed is also transmitted to IMG Media Ltd, which incorporates certain onscreen graphics and logos into it to produce the "World Feed". Prior to the 2012/2013 season, the World Feed was transmitted live to broadcasters who had been licensed by FAPL other than those who receive the Clean Live Feed. Since the beginning of the 2012/2013 season, the World Feed has been recorded ("the Recorded World Feed") before it is transmitted to the broadcasters.

12

For the purposes of the present application, FAPL claims copyright in the following works:

i) the films comprising the Action Replay Films included in the Clean Live Feed (and hence the Recorded World Feed);

ii) the films comprising the Recorded World Feed;

iii) the artistic works comprising the Premier League and Barclays logos which are incorporated in the Recorded World Feed; and

iv) the artistic works comprising two sets of on-screen graphics (referred to as the "AEL Onscreen Graphics" and the "IMG Onscreen Graphics") which are incorporated in the Recorded World Feed.

13

I am satisfied by the evidence filed by FAPL that copyright subsists in these works and that FAPL owns those copyrights.

FirstRow

14

FirstRow is a website which has been operating for some time as an indexing and aggregation portal to streamed broadcasts of sporting events. The site is currently located at www.firstrow1.eu, although a number of other domain names have been used, some of which have been seized by the US Department of Homeland Security. A visitor to the FirstRow website is presented with lists of links, organised by sport and time of the day, to streams containing live coverage of a wide range of sporting events, including in particular Premier League matches and events organised by the other supporting rightholders. Upon clicking on one of those links, the user is taken to a new page which features a "frame" or window in which that live coverage then appears, accompanied by advertising. As an alternative, the user can download a free app from the website to their computer which will enable them to access links.

15

The streams that are indexed on FirstRow are provided by third party streamers using one of a number of User Generated Content ("UGC") websites. There are around six or seven such UGC sites which are commonly used for this purpose, one of the most popular of which is called 04stream.com. There are a number of stages to the process. First, the third party streamer digitally captures a broadcast of a live sports event on his or her computer. The captured broadcast may be one that the streamer is watching on his television or computer legally (e.g. via a legitimate subscription) or it may be an illegal stream. Secondly, the streamer sends the captured images in real time to the server of a UGC site. Thirdly, the streamer uses the UGC site to create an "embed code" which enables the stream player to be embedded into a website like FirstRow. Fourthly, the streamer submits the embed code to FirstRow. If it is accepted, it will be listed as a link on...

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