The Football Association Premier League (FAPL) Ltd is the body
which owns and runs the English football Premier League. It is made
up of its member football clubs and it owns the rights to broadcast
League games.
Broadcasters pay significant sums to be allowed to show the
games, but the games are also filmed and packaged for foreign
audiences. Broadcasters abroad pay to show those games.
Companies such as Sky in the UK charge viewers to watch games,
with subscriptions for pubs being significantly higher than those
for households.
QC Leisure, AV Station and others are accused of selling
equipment to UK pubs which would allow them to watch foreign feeds
of UK matches and avoid paying Sky or Setanta, the UK
licensees.
FAPL claims that QC Leisure and AV Station sold decoder cards
imported from Greece through subterfuge to enable UK pubs to watch
games without paying UK licensees' fees. The cards allow the
watching of live games on Saturday afternoons. This is banned in
the UK in order to protect the ability of clubs to attract large
stadium crowds to games.
FAPL said that this activity is in breach of the Copyright,
Designs and Patents Act, which it claims gives it the right to
charge for access to the content it has rights in.
QC and AV argue that they have not broken copyright law. They
also say that attempts to stop them selling cards are in breach of
the EC Treaty, which lays out the founding principles of the
European Union. The Treaty guarantees the right of free trade
between member states.
The clash between copyright and competition law is, says Kim
Walker, an old one. Walker is an intellectual property law
specialist with Pinsent Masons, the law firm behind
OUT-LAW.COM.
"There has always been a tension between IP rights and
competition law because IP gives exclusive rights to do certain
things in certain places but competition law doesn't like the
concept of exclusivity," he said.
Broadcasting, and football broadcasting in particular, has
always been something of a special case, though, he said.
"The granting of exclusive broadcasting rights by territory has
been held to be not incompatible with European Community law
because it was thought that the only way for companies to get their
money back is to carve up the territories," said Walker. "Because
there is so much money in football the Commission bends over
backwards to find a way through what would otherwise be examined in
a lot of detail."
FAPL used as the basis of its claim the European Court of
Justice (ECJ) verdict in a case involving film distribution, known
as Coditel II. In that case the ECJ said that time-limited
territorial exclusivity was not necessarily a breach of competition
law.
Mr Justice Barling, though, said that the FAPL claim went
further than that, that the football authorities were not only
granting territorial exclusivity but asking the licensees to
enforce that exclusivity. This may itself be against the law.
"[FAPL] places more weight on Coditel II than it can bear," he
wrote in his judgment. "The scope of the judgment in that case was
narrow, being restricted to 'the mere fact' of the grant to a
licensee of exclusive rights in a particular territory. The
contractual provision with which we are concerned does not consist
merely of a grant of such exclusive rights … the provision appears
to impose certain obligations upon the foreign broadcaster, namely
to undertake to 'procure' that non-UK decoder cards are not
authorised or enabled by the licensee or any sub-licensee … to
enable anyone to view the foreign broadcaster's transmission
outside the latter's territory. In other words, foreign licensees
are apparently required to prevent use of the decoder cards outside
their licensed territory."
Walker said that the forcing of licensees to police the use of
signals may be against the law. "In intellectual property law you
can have exclusive rights to sell goods in a certain territory but
European law says you can't require that distributor to reject
unsolicited orders that come from outside that territory," he said.
"What the judge is worried about is that it might be a breach of
Commission law to require the companies to police national
borders."
Mr Justice Barling said that FAPL had not made its case so
completely that it could skip a trial. He said that the case would
have to go to a full trial.
