23 January 2014 16:25

The FA announced today that they were to initiate up to 100 prosecutions across England and Wales for copyright infringements by pubs in showing English Premier Leagues games using satellite feeds from broadcasters outside the UK.

These prosecutions follow on from the FA’s failed attempt to prosecute a Portsmouth pub landlady, Karen Murphy, for dishonestly receiving a broadcast with intent to avoid payment by showing Premier League games broadcast by a Greek TV station. It would have cost her £700 per month for a Sky Sports subscription, but only £800 per annum for the subscription to the Greek broadcaster. Her case went all the way to the Court of Justice of the European Union, where they ruled that it was contrary to EU law for the FA, and other sports right-holders, to use territorial restrictions in copyright licenses to attempt to create artificial barriers to trade within the EU internal market, and therefore it was legitimate for people in the UK to buy subscriptions to other European TV services.

But that was only part of the ruling. While pub landlords can buy a subscription to a non-UK TV service the Court of Justice also made it clear that rights-holders, like the FA, still retain copyright in certain parts of the stream they provide to non-UK broadcasters. They have no copyright over the football match itself, but do have copyright over any artistic, literary or musical works associated with the broadcast. In terms of Premier League matches, that includes the FA anthem, any graphics that appear on screen, or any highlights packages that are shown during breaks in play. A pub that “communicates to the public” any of these copyright works without the permission of the FA may still be seen as committing a copyright infringement under the Copyrights, Designs and Patents Act 1998. It is only an offence to “communicate to the public” those copyright works, so there is no threat to viewing non-UK broadcasts in private dwellings, but any commercial premises risk the FA seeking to enforce their rights through the courts.

There are several defences which may still come into play when these cases come to court. For instance in the Court of Justice the Advocate General suggested it might be disproportionate to block the whole broadcast to protect ‘secondary elements’ where they were only a small portion of the whole, and the 1998 Act has provisions to allow ‘incidental inclusion’ of copyright works.

It wouldn’t surprise me to see some of these cases being referred back to the Court of Justice of the European Union in the future.

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