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Football on pub TVs screened by the Courts

After time out at the European Court of Justice, the battle between the FA Premier League and various IT entrepreneurs is in Chancery again. This is the story so far:
There is copyright in a broadcast (as a work of technology). In the case of a film (or other visual or audio-visual record), there is copyright in the film (as a work of technology) and the screenplay (as a work of literature). A sound recording of music has copyright in the music (as music) and also copyright in the sound recording (as a work of technology). But, although there many other copyrights, there is no copyright (nor other intellectual property right) in a football match. However, it would be acceptable under European Union law for the UK, if it wanted to, to enact a law creating a new kind of right to protect live professional sport.
EU states are obliged to have national laws giving copyrightholders the right to authorise or prohibit any “communication to the public” of their works. Letting customers in a pub watch a TV programme is a “communication to the public” – a communication by the publican to a “new public”, a customer public far beyond the (home-viewing) public that the broadcaster had in mind when it set the rates for its domestic pay-to-view subscriptions. The UK has an EU obligation to have a law that would enable a broadcaster to make an extra charge for authorising a publican to let his customers watch TV on the premises (whether or not the publican in turn makes a charge for that facility). But as the UK law stands, showing or playing a broadcast to an audience of customers comes under a special exception, provided the customers have had to pay neither an extra charge nor higher-than-usual drinks etc. prices. The result is that there is no infringement of copyright in the broadcast, nor in any included film nor in any included sound recording (unless the broadcaster made the sound recording itself).
The UK’s laws about “illicit” TV broadcast decoder cards are not objectionable in principle but they go further than EU law allows because they try to prohibit buying a decoder in one EU country and using it in another. Under EU law it is one thing for broadcasters to assert their rights to national copyrights by raising infringement actions against a background of properly-conceived authorisation schemes; but it is quite another for them to try to partition the European market in information services. That said, sale in the UK of a decoder card to be used to enable the showing of a TV programme will be unlawful if the showing would infringe copyright. But if the showing would not infringe copyright (because of the special exception already mentioned) the sale for that purpose will not be unlawful.
Instead of trying to ban the import of foreign decoders, the UK will need to consider doing away with its too-wide special exception for communications to the public. If the court orders that are still to be made in the case do not contain any surprises and if there is no appeal, the broadcasters are likely to lose out. If so that will not be because EU law does not allow a ban on imports of decoder cards, it will be because UK law has failed to require that “communication to the public” must be based on rightholder authorisation. This lack of a remedy for rightholders might raise the issue of whether the broadcasters could have any recourse against the UK for loss resulting from failure to fulfil an EU obligation.
Meanwhile, so long as the publican takes great care and, in particular, shows no anthems, no graphics or logos etc., he stands a good chance of not infringing UK copyright law. No doubt that is why “The Independent” has reported that: “Premier League content has been developed to include more logos and symbols that uphold its ownership of the material, meaning landlords cannot flout the rules by turning the television on and off at key times.”
For further information please contact Jim McLean.