|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Football Association Premier League Ltd & Ors v QC Leisure & Ors  EWHC 1411 (Ch) (24 June 2008)
Cite as:  EWHC 1411 (Ch)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| Football Association Premier League Limited
NetMed Hellas SA
Multichoice Hellas SA
|- and -
|(1) QC Leisure (a trading name)
(2) David Richardson
- and -
(1) AV Station Plc
(2) Malcolm Chamberlain
- and –
(1) Michael Madden
(2) Sanjay Raval
(3) David Greenslade
(4) S.R. Leisure Limited
(5) Phillip George Charles Houghton
(6) Derek Owen
Mr Martin Howe QC, Mr Andrew Norris, Mr Thomas St Quintin and Mr StephenVousden instructed by Molesworth Bright Clegg on behalf of AV Station Plc and Mr Chamberlain and OBG Cameron Banfill LLP on behalf of the other Defendants
Hearing dates: 15, 17,18, 21 – 25, 28 – 30 April and 1 – 2 May, 5 June 2008
Crown Copyright ©
MR. JUSTICE KITCHIN :
i) "The Pig & Whistle", of which the first defendant, Michael Madden, is the licensee.
ii) "Earls", which involves the second to fourth defendants. The owner of Earls is the fourth defendant, S.R.Leisure Ltd ("SR"). The second defendant, Sanjay Raval, is the sole director of SR. The third defendant, David Greenslade, is employed as Earls' manager and licensee, but the claimants indicated during the course of the trial that the claim is no longer pursued against him.
iii) "The Crabtree Inn", of which the fifth defendant, Philip Houghton, is the licensee.
iv) "London House", of which the sixth defendant, Derek Owen, is the licensee.
At each of these pubs, screening of live Premier League matches using an ART decoder card is admitted.
i) Council Directive 89/552/EEC of 3 October 1989, as amended by Directive 97/36/EC, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (the TV Without Frontiers Directive). This abolishes regulatory barriers to cross-border broadcasting by establishing a system in which broadcasts are regulated in the home country of the broadcaster and in that country only.
ii) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellites and Copyright Directive). This is relevant to the claimants' attempt to invoke national copyright law to prevent cross-border reception of satellite broadcasts.
iii) Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (the Conditional Access Directive). This is plainly the key Directive governing the alleged cause of action under s.298 of the Act, since s.298 in its present form is intended to transpose this Directive into national law. Directive 98/84/EC cross refers to Directive 89/552/EEC for the definition of television broadcasting.
iv) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the Copyright and Information Society Directive). This contains a number of relevant provisions relating, in particular, to reproduction rights, rights to communicate works to the public and various exceptions to reproduction rights in the case of transient or incidental copying.
Issues relating to Directive 98/84/EC
i) The scope of Directive 98/84/EC and, in particular, the meaning of the expression "illicit device". The claimants say it applies to all decoder cards which give unauthorised access to a protected service. The defendants say it does not apply to parallel imported decoder cards and hence the claim must fail against all the defendants.
ii) Whether, on the assumption the cards in issue are illicit devices, FAPL has a cause of action under Directive 98/84/EC. FAPL puts its case a number of ways but essentially contends that it does because it is the provider of a protected service and its interests are affected by the defendants' activities. The defendants say it does not because the decoder cards do not give access to the service which FAPL provides. Instead, they give access to the broadcasting services provided by NOVA and ART. The Directive confers a right of action on service providers in respect of decoder cards which give access to the service provider's own service. It is not intended to confer a right to control cards issued by downstream broadcasters upon all and any upstream providers of programme material to those broadcasters.
iii) Whether there can be a claim under Directive 98/84/EC against the Madden defendants. These defendants say any claim under the Directive must fail because they have never been in possession of the cards in issue for commercial purposes and consequently have never engaged in an infringing activity within the meaning of the Directive.
Authorisation by NOVA and ART
iv) Whether NOVA or FAPL has authorised the circulation and use of NOVA decoder cards outside Greece; further, and as a sub-issue, whether the NOVA cards were issued to domestic or commercial subscribers.
v) Whether FAPL or ART has authorised the circulation and use of ART countdown decoder cards in the EU.
The copyright works
vi) Subsistence of and title to copyright in the various works relied upon.
vii) Which works were actually broadcast by NOVA and ART.
viii) Issues arising in relation to particular copyright works, namely sound recordings, musical works and action replays.
The Madden defendants
ix) The activities of the Madden defendants.
The acts of infringement
x) Infringement by copying in the decoder and on television screens. This raises issues as to whether copies of a substantial part of any relevant copyright work are made in the decoder boxes or on the television screens and whether a defence is available under s.28A or s.72 of the CDPA.
xi) Infringement by communication to the public.
xii) Infringement by performing, playing or showing the works in public and whether a defence is available under s.72 of the CDPA.
Particular issues of or relating to Community law
xiii) Whether there is a general defence to the infringement of copyright claims under Directive 93/83/EEC .
xiv) Whether the claimants are seeking relief in respect of the NOVA cards (and the ART cards in so far as I find FAPL or ART consented to their importation into the EU) which would amount to a quantitative restriction on trade between Member States or a measure having equivalent effect within the meaning of Article 28 EC or a restriction on the freedom of foreign broadcasters to provide services and customers to receive services contrary to Article 49 EC.
xv) FAPL's licensing agreements restrict each licensee from supplying (even passively in response to an unsolicited order) or permitting the use of its decoder cards outside its licensed territory. The defendants say these contractual restrictions seek to provide absolute territorial protection to each licensee contrary to Article 81 EC.
xvi) Whether it is appropriate to make a preliminary reference to the Court of Justice under Article 234 EC.
xvii) Whether the QC and AV defendants have authorised the infringement of copyright by their customers, including the Madden defendants.
xviii) The personal liability of Mr Chamberlain and Mr Raval.
xix) Whether the claimants are potentially entitled to additional damages under s.97(2) of the CDPA.
The factual background
Broadcasting of the Premier League matches
The creation of the Premier League match feeds – in outline
i) At the match, several cameras capture the live action. An outside production facility at the match selects which camera's output is to be used at any moment for the live broadcast. Its output, along with the ambient sound captured at the match (together referred to as "the Clean Live Feed"), is transmitted along fibre optic cable (via BT Tower) to a production facility operated in London by IMG Media Limited ("IMG").
ii) IMG adds logos, video sequences, on-screen graphics, music and English commentary to the Clean Live Feed. The resulting signal is referred to as "the World Feed".
iii) The World Feed is then transmitted by IMG along fibre optic cable back to BT Tower, where it is compressed and encrypted, and transmitted by satellite to the foreign broadcaster.
iv) The foreign broadcaster decrypts and decompresses the World Feed, so that it can add its logo and possibly some commentary. The signal is then compressed and encrypted again, and transmitted via satellite to subscribers.
v) Subscribers receive the signal using a small satellite dish. The signal is decrypted and decompressed in a decoder, which requires for its operation a decoder card.
vi) During play of the football match, the foreign broadcaster superimposes only its channel logo in the corner of the image and may add a commentary. Outside play (i.e. before kick-off, during half-time and after full-time), the foreign broadcaster may or may not use the World Feed, which during these times either carries live footage from the football ground or pre-recorded programming.
vii) The whole process of transmission of the live signal from the football pitch to the subscriber takes approximately 5 seconds.
The Clean Live Feed
The World Feed
i) The Opening Sequence Film
The World Feed commences with an introduction or opening sequence ("the Opening Sequence Film"), which is a pre-recorded video sequence of football action, graphics (the "Opening Sequence Graphics Film") and stills of certain players. The graphics include the Premier League logos (the "Logos"). The football action shots are derived from recently recorded footage of previous matches including the Match Films, recordings of the Clean Live Feed (the "Clean Live Feed Film") and World Feed (the "World Feed Film") and films made by IMG employees or freelancers who attend matches and record footage such as pre-match crowd build up and interviews with players ("IMG Match Films"). The Opening Sequence Film is accompanied by the Premier League anthem ("the Anthem").
ii) The Match Highlights Film
During half time and at full time, the World Feed includes highlights of the match. These are created by IMG by selecting images from the Clean Live Feed Film and recording them onto a hard disc in a particular order to make the "Match Highlights Films". These films may be accompanied by the Anthem.
iii) Previous Highlights, Next Match Preview and Special Feature Films
Before the start of the match, the World Feed includes pre-recorded films showing highlights of the last Premier League matches played by the teams in the current match (the "Previous Highlights Films") and which may again be accompanied by the Anthem. At half time, there is a recorded preview of the teams' next Premier League matches (the "Next Match Preview Film") and a special feature comprising a "test your knowledge" quiz or telling a story of a particular player, manager or incident (the "Special Feature Film").
iv) On Screen Graphics Films
At various points before and during the match, moving graphics are included in the World Feed. These include the Team Bar, the Previous Performance Bar and the Yellow Card Bar. They are recorded digitally in a form from which a moving image may be reproduced.
North Africa and the Middle East
Section 298 of the CDPA – general
"298.— Rights and remedies in respect of apparatus, &c. for unauthorised reception of transmissions.
(1) A person who–
(a) makes charges for the reception of programmes included in a broadcasting service provided from a place in the United Kingdom or any other member State,
(b) sends encrypted transmissions of any other description from a place in the United Kingdom or any other member State, or
(c) provides conditional access services from a place in the United Kingdom or any other member State,
is entitled to the following rights and remedies.
(2) He has the same rights and remedies against a person–
(i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,
(ii) has in his possession for commercial purposes, or
(iii) instals, maintains or replaces for commercial purposes,
any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so, or
(b) who publishes or otherwise promotes by means of commercial communications any information which is calculated to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so,
as a copyright owner has in respect of an infringement of copyright.
(7) In this section "apparatus", "conditional access technology" and "encrypted" have the same meanings as in section 297A, "transmission" includes transmissions as defined in that section and "conditional access services" means services comprising the provision of conditional access technology.
299.— Supplementary provisions as to fraudulent reception.
(4) Where sections 297 and 298 apply in relation to a broadcasting service, they also apply to any service run for the person providing that service, or a person providing programmes for that service, which consists wholly or mainly in the sending by means of telecommunications system of sounds or visual images, or both.
(5) In sections 297, 297A and 298, and this section, "programme" and "broadcasting" and related expressions, have the same meaning as in Part I (copyright)."
"6-(1) In this Part a "broadcast" means an electronic transmission of visual images, sounds or other information which –
(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,
and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.
(2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.
(3) References in this Part to the person making a broadcast, or a transmission which is a broadcast are -
(a) to the person transmitting the programme, if he has responsibility to any extent for its contents, and
(b) to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission;
and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.
(4) For the purposes of this Part, the place from which a wireless broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).
(5) References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunications system.
(5A) The relaying of a broadcast by reception and immediate re-transmission shall be regarded for the purposes of this Part as a separate act of broadcasting from the making of the broadcast which is so re-transmitted."
i) The Clean Live Feed and the World Feed are programmes included in a broadcasting service provided by FAPL from the UK within the meaning of s.298(1)(a).
ii) The transmissions provided by NOVA are programmes included in a broadcasting service provided from Greece within the meaning of s.298(1)(a).
iii) NOVA charges subscribers directly for the reception of SuperSport transmissions; FAPL charges subscribers indirectly for the reception of the Clean Live Feed and the World Feed.
iv) In the alternative, the Clean Live Feed and World Feed are encrypted transmissions "of any other description" within the meaning of s.298(1)(b).
v) In the further alternative, the provision of the Clean Live Feed and the World Feed is a service provided by FAPL for NOVA within the meaning of s.299(4).
vi) The defendants are dealing in or possess for commercial purposes ART and NOVA decoder cards which are designed or adapted to enable persons to access the programmes or other transmissions when they are not entitled to do so.
Directive 98/84 EC (The Conditional Access Directive)
"(1) Whereas the objectives of the Community as laid down in the Treaty include creating an ever closer union among the peoples of Europe and ensuring economic and social progress, by eliminating the barriers which divide them;
(2) Whereas the cross-border provision of broadcasting and information society services may contribute, from the individual point of view, to the full effectiveness of freedom of expression as a fundamental right and, from the collective point of view, to the achievement of the objectives laid down in the Treaty;
(3) Whereas the Treaty provides for the free movement of all services which are normally provided for remuneration; whereas this right, as applied to broadcasting and information society services, is also a specific manifestation in Community law of a more general principle, namely freedom of expression as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas that Article explicitly recognizes the right of citizens to receive and impart information regardless of frontiers and whereas any restriction of that right must be based on due consideration of other legitimate interests deserving of legal protection;
(4) Whereas the Commission undertook a wide-ranging consultation based on the Green Paper 'Legal Protection of Encrypted Services in the Internal Market'; whereas the results of that consultation confirmed the need for a Community legal instrument ensuring the legal protection of all those services whose remuneration relies on conditional access;
(5) Whereas the European Parliament, in its Resolution of 13 May 1997 on the Green Paper, called on the Commission to present a proposal for a Directive covering all encoded services in respect of which encoding is used to ensure payment of a fee, and agreed that this should include information society services provided at a distance by electronic means and at the individual request of a service receiver, as well as broadcasting services;
(6) Whereas the opportunities offered by digital technologies provide the potential for increasing consumer choice and contributing to cultural pluralism, by developing an even wider range of services within the meaning of Articles 59 and 60 of the Treaty; whereas the viability of those services will often depend on the use of conditional access in order to obtain the remuneration of the service provider; whereas, accordingly, the legal protection of service providers against illicit devices which allow access to these services free of charge seems necessary in order to ensure the economic viability of the services;
(11) Whereas the disparity between national rules concerning the legal protection of services based on, or consisting of, conditional access is liable to create obstacles to the free movement of services and goods;
(12) Whereas the application of the Treaty is not sufficient to remove these internal market obstacles; whereas those obstacles should therefore be removed by providing for an equivalent level of protection between Member States; whereas this implies an approximation of the national rules relating to the commercial activities which concern illicit devices;
(13) Whereas it seems necessary to ensure that Member States provide appropriate legal protection against the placing on the market, for direct or indirect financial gain, of an illicit device which enables or facilitates without authority the circumvention of any technological measures designed to protect the remuneration of a legally provided service;
(15) Whereas those commercial activities are detrimental to consumers who are misled about the origin of illicit devices; whereas a high level of consumer protection is needed in order to fight against this kind of consumer fraud; whereas Article 129a(1) of the Treaty provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 100a thereof;
(16) Whereas, therefore, the legal framework for the creation of a single audiovisual area laid down in Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities should be supplemented with reference to conditional access techniques as laid down in this Directive, in order, not least, to ensure equal treatment of the suppliers of cross border broadcasts, regardless of their place of establishment;
(21) Whereas this Directive is without prejudice to the application of any national provisions which may prohibit the private possession of illicit devices, to the application of Community competition rules and to the application of Community rules concerning intellectual property rights;
(22) Whereas national law concerning sanctions and remedies for infringing commercial activities may provide that the activities have to be carried out in the knowledge or with reasonable grounds for knowing that the devices in question were illicit;
(23) Whereas the sanctions and remedies provided for under this Directive are without prejudice to any other sanction or remedy for which provision may be made under national law, such as preventive measures in general or seizure of illicit devices; whereas Member States are not obliged to provide criminal sanctions for infringing activities covered by this Directive; whereas Member States' provisions for actions for damages are to be in conformity with their national legislative and judicial systems;
(24) Whereas this Directive is without prejudice to the application of national rules which do not fall within the field herein coordinated, such as those adopted for the protection of minors, including those in compliance with Directive 89/552/EEC, or national provisions concerned with public policy or public security,"
The objective of this Directive is to approximate provisions in the Member States concerning measures against illicit devices which give unauthorised access to protected services.
For the purposes of this Directive:
(a) protected service shall mean any of the following services, where provided against remuneration and on the basis of conditional access:
- television broadcasting, as defined in Article 1(a) of Directive 89/552/EEC,
- radio broadcasting, meaning any transmission by wire or over the air, including by satellite, of radio programmes intended for reception by the public,
- information society services within the meaning of Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services,
or the provision of conditional access to the above services considered as a service in its own right;
(b) conditional access shall mean any technical measure and/or arrangement whereby access to the protected service in an intelligible form is made conditional upon prior individual authorisation;
(c) conditional access device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form;
(d) associated service shall mean the installation, maintenance or replacement of conditional access devices, as well as the provision of commercial communication services in relation to them or to protected services;
(e) illicit device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider;
(f) field coordinated by this Directive shall mean any provision relating to the infringing activities specified in Article 4.
Internal market principles
1. Each Member State shall take the measures necessary to prohibit on its territory the activities listed in Article 4, and to provide for the sanctions and remedies laid down in Article 5.
2. Without prejudice to paragraph 1, Member States may not:
(a) restrict the provision of protected services, or associated services, which originate in another Member State; or
(b) restrict the free movement of conditional access devices;
for reasons falling within the field coordinated by this Directive.
Member States shall prohibit on their territory all of the following activities:
(a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;
(b) the installation, maintenance or replacement for commercial purposes of an illicit device;
(c) the use of commercial communications to promote illicit devices
Sanctions and remedies
1. The sanctions shall be effective, dissuasive and proportionate to the potential impact of the infringing activity.
2. Member States shall take the necessary measures to ensure that providers of protected services whose interests are affected by an infringing activity as specified in Article 4, carried out on their territory, have access to appropriate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, and where appropriate, applying for disposal outside commercial channels of illicit devices.
(a) Directive 89/552/EEC (The TV Without Frontiers Directive)
"(3) Whereas broadcasts transmitted across frontiers by means of various technologies are one of the ways of pursuing the objectives of the Community; whereas measures should be adopted to permit and ensure the transition from national markets to a common programme production and distribution market and to establish conditions of fair competition without prejudice to the public interest role to be discharged by the television broadcasting services;
(12) Whereas it is consequently necessary and sufficient that all broadcasts comply with the law of Member State from which they emanate;"
"For the purpose of this Directive:
(a) 'television broadcasting' means the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public. It includes the communication of programmes between undertakings with a view to their being relayed to the public. It does not include communication services providing items of information or other messages on individual demand such as telecopying, electronic data banks and other similar services;
(b) 'broadcaster' means the natural or legal person who has editorial responsibility for the composition of schedules of television programmes within the meaning of (a) and who transmits them or has them transmitted by third parties;"
(b) Directive 98/34/EC (The Information Society Services Directive)
For the purposes of this Directive, the following meanings shall apply:
2. 'service', any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
For the purposes of this definition:
- 'at a distance' means that the service is provided without the parties being simultaneously present,
- 'by electronic means' means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,
- 'at the individual request of a recipient of services' means that the service is provided through the transmission of data on individual request.
An indicative list of services not covered by this definition is set out in Annex V.
This Directive shall not apply to:
- radio broadcasting services,
- television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC"
i) The use of the word "necessary" signals that the prohibition of illicit devices is a proportionate measure, that is to say, it is necessary in order to protect a service provider's remuneration and no less a restrictive measure will suffice to protect this legitimate policy object. This recital is, say the claimants, an answer to any argument from the defendants on proportionality.
ii) The protection which Member States must provide must be broad and cover both "direct and indirect" gain, including publicans who gain from increased trade in their pubs.
iii) An illicit device is one which "enables" or "facilitates" the circumvention of any technological measures (here, encryption) which are designed to protect the service provider's remuneration. In this case an ART or NOVA card supplied by QC and AV for use in the UK plainly "enables …. without authority" the decryption of the signal in the UK.
iv) For the same reason each of those cards "facilitates …. without authority" the circumvention of technology designed to protect the remuneration of the service provider.
v) In Recital 13 (and in Article 2), the word "designed" is used in the sense of "the purpose of".
vi) Finally, Recital 13 makes it clear (along with Recitals 3,4,5 and 6) that the essential purpose of the Directive is to protect the service, not the sale of devices.
i) Article 2(c) defines "conditional access device" as any equipment or software designed or adapted to give access to a protected service in an intelligible form.
ii) Article 2(e) defines "illicit device" as any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider.
i) First, they are clearly devices (decoder cards) which (when used with an appropriate decoder box) are "designed to give access" to a protected service within the UK. This is their purpose and effect.
ii) Second, it is clear there is no authorisation from the service provider (whether FAPL, NOVA or ART) for such access in the UK.
"Traditionally, however, broadcasting rights are granted on a territorial basis, which means access often has to be limited to viewers within a specific geographical or common language area. Encryption allows the operator to restrict the reception of the signal exclusively to those territories for which rights have been acquired."
"…they confine themselves to prohibiting the marketing of devices manufactured without the prior authorisation of the encryptor, irrespective of their domestic or foreign origins; therefore they do not go beyond what is necessary for the attainment of the objective.34 Finally, they also respect the substitution and equivalence criterion, since there are no alternative and less restrictive measures that would ensure the desired protection."
"By contrast, if the prohibitions in question were applied to the import and marketing of devices manufactured and marketed in the Member State of origin with the consent of the encryptor, they would be liable to result in economic barriers which would be disproportionate to the objective, and therefore incompatible with the principles on the free movement of goods as interpreted by the Court."
"In conclusion, an obstacle to the free movement of decoding devices manufactured and marketed in the State of origin, without the prior consent of the encryptor, may be justified by consumer protection and the fairness of commercial transactions, as well as by the protection of industrial or intellectual property."
"devices intended to permit access to encrypted services without the authorisation of the encryptor "
i) As an expression of the Commission's legal opinion on the scope and application of rules of the Treaty on free movement of goods and services. They say that whilst the Court of Justice is not bound to follow the Commission's opinion on a legal issue, it is plainly not acte claire that the Commission's opinion was wrong;
ii) As informing the interpretation of the Directive subsequently adopted. They submit it is inconceivable that the Commission would have proposed a measure which it believed to be contrary to the Treaty.
"The proposed Directive will require Member States to prohibit and provide appropriate sanctions against a wide range of commercial piracy activities that relate to illicit (pirate) decoders, smart cards and software which allow the circumvention of conditional access systems and the reception of a service free of charge.
The proposal concerns commercial piracy activities against protected services"
Who has a relevant cause of action under Directive 98/84/EC?
i) FAPL makes the initial transmission by satellite in encoded form of television programmes (i.e. the Clean Live Feed, a fortiori, the World Feed) intended for reception by the public. This comprises a television broadcasting service within the definition in Art 2(a) by reference to Article 1(a) of Directive 89/552/EEC (the TV Without Frontiers Directive). It is also a service provided against remuneration (directly to the foreign broadcast licensee such as NOVA and ART, and thereby indirectly to the consumer) and on the basis of conditional access (the transmissions are encrypted).
ii) Further or alternatively, FAPL provides the communication of programmes between undertakings with a view to their being relayed to the public. This comprises a television broadcasting service within the definition in Art 2(a) by reference to Article 1(a) of Directive 89/552/EEC. It is also a service provided against remuneration (directly to the foreign broadcast licensee such as NOVA and ART, and thereby indirectly to the consumer) and on the basis of conditional access (the transmission is encrypted).
iii) Alternatively, FAPL provides an information society service within the meaning of Directive 98/34/EC (the Information Society Services Directive). In particular, provision of the World Feed is a service
- provided for remuneration (the foreign licence fee)
- at a distance (since the parties are not simultaneously present)
- by electronic means (using electronic equipment and transmitting and receiving by fibre optic cable and satellite)
- provided through the transmission of data on individual request (ART and NOVA select the World Feeds they want to receive).
"A person who dishonestly receives a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale."
"……The question is to be answered by identifying what is said to be the "programme included in a broadcasting service", then determining where that broadcasting service is provided from. Employing the definitions of s.6 CDPA, a "programme" is "any item included in a broadcast", itself defined as "an electronic transmission of visual images, sounds or other information". We do not consider that for this purpose a "broadcasting service" is anything more than a succession of such transmissions. In every case, however, it must be determined whether the broadcast, and so the programme, is capable of being lawfully received by members of the public. In the present case, there is no doubt that the core of the transmissions received by Ms Murphy, the visual images and the ambient sound of the matches themselves, was transmitted for simultaneous reception by members of the public and was capable of being lawfully received by them from BSkyB."
"37. The question in every case is to identify the "programme" received by the Defendant. In the present case, the programme in question comprised visuals and ambient sound transmitted from the ground in the United Kingdom, the broadcasting service being the supply of such programmes for simultaneous reception by members of the public in the UK. The fact that this programme had added to it, first, an English commentary and, second, a Greek commentary and a Greek visual logo, did not change the identity of the programme as received by the Appellant.
38. The question is accordingly ambiguous, since it is necessary in every case to identify the first point at which the programme which is the subject of the charge came into existence to be included in the broadcasting service. The place from which the broadcasting service is provided is the point at which the initial transmission of the programme for ultimate reception by the public took place. That place is the United Kingdom."
"It is not clear to us why this question arises. The question is the identification of the broadcasting service, not the person responsible for it. It seems to us, however, that both FAPL and BSkyB are the broadcaster for this purpose, since it is they who have editorial responsibility "for the composition of schedules of television programmes" so far as the transmitted match is concerned."
"Whereas this Directive is without prejudice to the application of any national provisions which may prohibit the private possession of illicit devices …"
and contrast this with the words "possession for commercial purposes" used in Article 4.
Authorisation by NOVA
i) The NOVA website intended for viewers has complete versions in both Greek and English.
ii) Channel listings on that website are in Greek and English.
iii) User Guides are provided on the website in Greek and English.
iv) The electronic programme guide is provided in Greek and English.
v) The SuperSports channels show football leagues from around the world.
vi) The SuperSports channels show live cricket, when there are only a handful of cricket clubs in Greece.
vii) The SuperSports channels show rugby, when there are only eight teams in Greece.
viii) The Filmnet channels carry Hollywood films, and they do not contain Greek films.
ix) Channel names in Roman script and English language are targeted at an international audience.
Domestic or commercial subscriptions
Authorisation by ART
The defence based on Mr Bertolelli
Implied licence from sale without restriction
"In view of the serious effect in extinguishing the exclusive rights of the proprietors of the trade marks in issue in the main proceedings (rights which enable them to control the initial marketing in the EEA), consent must be so expressed that an intention to renounce those rights is unequivocally demonstrated"
Copyright - introduction
Copyright - subsistence and title
Sound recording and musical work
Copyright – what was actually broadcast?
NOVA - what was broadcast
ART – what was broadcast
Issues arising in relation to particular works
"(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.
(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
(3) A musical work, words spoken or sung with music, or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included."
i) the NOVA representative matches, in the player line up and in the Match Highlights Film and, in the case of Arsenal v Manchester City and Portsmouth v Chelsea in the Previous Highlights Film;
ii) the ART studio representative match, in the player line up;
iii) on occasion in the ART non-studio matches, in the Opening Sequence Film, the player line up, the Match Highlights Film and the Previous Highlights Film; however,
iv) the defence of incidental inclusion in the case of the player line up succeeds.
The Madden defendants
i) The "Pig & Whistle" (Mr Madden): Bolton v Tottenham on 19 August 2006 and West Ham v Arsenal on 5 November 2006. Both were studio matches.
ii) "Earls" (Mr Raval and SR Leisure): Wigan v Manchester United on 14 October 2006 and Reading v Tottenham on 12 November 2006. The former was a studio match and the latter was a non-studio match.
iii) The "Crabtree Inn" (Mr Houghton): Manchester United v Fulham on 20 August 2006 and Newcastle v Sheffield United on 4 November 2006. The former was a studio match and the latter was a non-studio match.
iv) "London House" (Mr Owen): Manchester United v Fulham on 20 August 2006 and West Ham v Arsenal on 5 November 2006. Both were studio matches.
Infringement – copying in the decoder and on the television screen
i) Are copies of the whole or a substantial part of the copyright works made in the decoder boxes of the Madden defendants and others to whom AV and QC have supplied NOVA or ART decoder cards?
ii) Are such copies made on the television screens of persons to whom AV and QC have supplied such cards?
iii) Do the defendants have a defence to any such infringement claims under s.28A of the CDPA?
iv) Do the defendants have a defence to any such infringement claims under s.72 of the CDPA? This issue is intimately tied to the new allegation of infringement under s.19, to which s.72 is also raised as a defence. I deal with s.19 and s.72 later in this judgment and consider s.72 as a defence to copying in that context.
Are copies of a substantial part of the copyright works made in the decoder boxes?
i) for video data, the decoder assembles copies of frames in parts of memory known as frame stores. These stores need to hold four frames of video, representing approximately 160 milliseconds of video images. A minimum of a single frame is also routinely held in a part of memory known as a framebuffer, from which the video data is output to the television.
ii) for audio data, the decoder deals with the audio stream separately and must synchronise it with the video output. It makes a copy of fragments of the audio stream, which it stores in its working memory until it needs to be output with the corresponding video data, and is likely to involve storage for in the order of up to 160 milliseconds.
"(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
(4) Copying in relation to a film or broadcast includes making a photograph of the whole or any substantial part of any image forming part of the film or broadcast
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work."
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
"It is clear that neither the whole nor any substantial part of a cinematograph film or motion picture is ever embodied in the RAM of a DVD player or personal computer at any given time. The mere fact that, over a period of time, being the time taken to play the motion picture or cinematograph film, tiny parts of it are sequentially stored in the RAM of the DVD player or personal computer does not meant that the motion picture or cinematograph film is embodied in such a device. "
Are copies of a substantial part of the copyright works made on the television monitors?
Summary of conclusions in relation to substantial part
Defence under section 28A?
Exceptions and limitations
1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
"The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law."
i) the temporary copy must be transient or incidental,
ii) it must be an integral and essential part of a technological process,
iii) the sole purpose of which is to enable (a) a transmission of the work in a network between third parties by an intermediary; or (b) a lawful use of the work, and
iv) it must have no independent economic significance.
"The exceptions and limitations provided for in paragraphs 1,2,3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."
"3.7.1. Article 5.1
18.104.22.168. The first exception is 'temporary acts of reproduction'. This is designed to ensure that the incidental storage of copies of the work on, for example, intermediate computer servers between a web-server and the computer running a web-browser used by an end-user is exempted. The test is whether the temporary reproduction has no 'independent economic significance': it should perhaps be made clear that the independent economic significance in question is independent economic significance to the use of the work in question, not to its transmission.
22.214.171.124. This clause needs expanding and clarifying. Any reproduction that in effect is consumption of the work, such as the temporary copying of programmes or data into memory in order to use or access such works, for example the act of accessing on-line databases, should only be permitted with the rightholder's authorisation."
Infringement – communication to the public
"20 Infringement by communication to the public
(1) The communication to the public of the work is an act restricted by the copyright in–
(a) a literary, dramatic, musical or artistic work,
(b) a sound recording or film, or
(c) a broadcast.
(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include–
(a) the broadcasting of the work;
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."
"(20) This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular Directives 91/250/EEC, 92/100/EEC, 93/83/EEC, 93/98/EEC and 96/9/EC, and it develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive.
(23) This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts."
"Article 3 - Right of communication to the public of works and right of making available to the public other subject-matter
3(1) Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."
"1. While the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of article 3(1) of that Directive.
2. The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of article 3(1) of Directive 2001/29."
"Authors of literary and artistic works shall enjoy the exclusive right of authorising: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by re-broadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work."
"Without prejudice to the provisions of articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."
"36. It follows from recital 23 in the Preamble to Directive 2001/29 that "communication to the public" must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that Directive, which, as can be seen from recitals 9 and 10, is to establish a high level of protection of, inter alios, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public.
37. The court has held that, in the context of this concept, the term "public" refers to an indeterminate number of potential television viewers: Mediakabel BV v Commissariaat voor de Media (Case C-89/04)  ECR I-4891, para 30 and Lagardère Active Broadcast v Société pour la perception de la rémunération équitable (SPRE) (Case C-192/04)  ECR I-7199, para 31.
38. In a context such as that in the main proceedings, a general approach is required, making it necessary to take into account not only customers in hotel rooms, such customers alone being explicitly mentioned in the questions referred for a preliminary ruling, but also customers who are present in any other area of the hotel and able to make use of a television set installed there. It is also necessary to take into account the fact that, usually, hotel customers quickly succeed each other. As a general rule, a fairly large number of persons are involved, so that they may be considered to be a public, having regard to the principal objective of Directive 2001/29, as referred to in para 36 of this judgment.
39. In view, moreover, of the cumulative effects of making the works available to such potential television viewers, the latter act could become very significant in such a context. It matters little, accordingly, that the only recipients are the occupants of rooms and that, taken separately, they are of limited economic interest for the hotel.
40. It should also be pointed out that a communication made in circumstances such as those in the main proceedings constitutes, according to article 11bis(1)(ii) of the Berne Convention, a communication made by a broadcasting organization other than the original one. Thus, such a transmission is made to a public different from the public at which the original act of communication of the work is directed, that is, to a new public.
41. As is explained in the Guide to the Berne Convention (1978), an interpretative document drawn up by the WIPO which, without being legally binding, nevertheless assists in interpreting that Convention, when the author authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme. According to the Guide, if reception is for a larger audience, possibly for profit, a new section of the receiving public hears or sees the work and the communication of the programme via a loudspeaker or analogous instrument no longer constitutes simple reception of the programme itself but is an independent act through which the broadcast work is communicated to a new public. As the Guide makes clear, such public reception falls within the scope of the author's exclusive authorisation right.
42. The clientele of a hotel forms such a new public. The transmission of the broadcast work to that clientele using television sets is not just a technical means to ensure or improve reception of the original broadcast in the catchment area. On the contrary, the hotel is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its customers. In the absence of that intervention, its customers, although physically within that area, would not, in principle, be able to enjoy the broadcast work."
Infringement – performing, playing or showing the works in public
19 Infringement by performance, showing or playing of work in public
(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.
(2) In this Part "performance", in relation to a work –
(a) includes delivery in the case of lectures, addresses, speeches and sermons, and
(b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.
(3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.
(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.
"72 Free public showing or playing of broadcast
(1) The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in –
(a) the broadcast;
(b) any sound recording (except so far as it is an excepted sound recording) included in it; or
(c) any film included in it.
(1A) For the purposes of this Part an "excepted sound recording" is a sound recording –
(a) whose author is not the author of the broadcast in which it is included; and
(b) which is a recording of music with or without words spoken or sung.
(1B) Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public –
(a) forms part of the activities of an organisation that is not established or conducted for profit; or
(b) is necessary for the purposes of –
(i) repairing equipment for the reception of broadcasts;
(ii) demonstrating that a repair to such equipment has been carried out; or
(iii) demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire.
(2) The audience shall be treated as having paid for admission to a place –
(a) if they have paid for admission to a place of which that place forms part; or
(b) if goods or services are supplied at that place (or a place of which it forms part) –
(i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast, or
(ii) at prices exceeding those usually charged there and which are partly attributable to those facilities."
The sound recording
The s.72 defence to the allegation of copying
The Satellite and Copyright Directive (93/83/EEC)
"Whereas broadcasts transmitted across frontiers by means of various technologies are one of the ways of pursuing the objectives of the Community; whereas measures should be adopted to permit and ensure the transition from national markets to a common programme production and distribution market and to establish conditions of fair competition without prejudice to the public interest role to be discharged by the television broadcasting services;"
"(3) Whereas broadcasts transmitted across frontiers within the Community, in particular by satellite and cable, are one of the most important ways of pursuing these Community objectives, which are at the same time political, economic, social, cultural and legal;
(4) Whereas the Council has already adopted Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, which makes provision for the promotion of the distribution and production of European television programmes and for advertising and sponsorship, the protection of minors and the right of reply;
(5) Whereas, however, the achievement of these objectives in respect of cross-border satellite broadcasting and the cable retransmission of programmes from other Member States is currently still obstructed by a series of differences between national rules of copyright and some degree of legal uncertainty; whereas this means that holders of rights are exposed to the threat of seeing their works exploited without payment of remuneration or that the individual holders of exclusive rights in various Member States block the exploitation of their rights; whereas the legal uncertainty in particular constitutes a direct obstacle in the free circulation of programmes within the Community;
(7) Whereas the free broadcasting of programmes is further impeded by the current legal uncertainty over whether broadcasting by a satellite whose signals can be received directly affects the rights in the country of transmission only or in all countries of reception together; whereas, since communications satellites and direct satellites are treated alike for copyright purposes, this legal uncertainty now affects almost all programmes broadcast in the Community by satellite;
(14) Whereas the legal uncertainty regarding the rights to be acquired which impedes cross-border satellite broadcasting should be overcome by defining the notion of communication to the public by satellite at a Community level; whereas this definition should at the same time specify where the act of communication takes place; whereas such a definition is necessary to avoid the cumulative application of several national laws to one single act of broadcasting; whereas communication to the public by satellite occurs only when, and in the Member State where, the programme-carrying signals are introduced under the control and responsibility of the broadcasting organization into an uninterrupted chain of communication leading to the satellite and down towards the earth; whereas normal technical procedures relating to the programme-carrying signals should not be considered as interruptions to the chain of broadcasting;
(15) Whereas the acquisition on a contractual basis of exclusive broadcasting rights should comply with any legislation on copyright and rights related to copyright in the Member State in which communication to the public by satellite occurs;"
"The object of the Directive, with the definition of the notion of communication to the public by satellite at Community level, was to put an end to the legal uncertainty regarding the rights to be acquired, by specifying the place where the act of communication occurs and the copyright legislation applicable to contractual relations regarding the transfer of rights. The applicable law is that of the Member State in which the programme-carrying signals are transmitted; its application extends beyond national borders into the Member States in which the signals are received (although, in technological terms, the footprint covers many areas other than those of the Member States, the term "footprint" in this Report refers only to the territory of the Member States). This principle avoids the cumulative application of several national legislations of the various Member States covered by the footprint (recitals 14 and 15)."
"A trend is thus emerging whereby producers sell their programmes to broadcasting organisations on condition that satellite transmissions are encrypted so as to ensure that they cannot be received beyond national borders. This encryption enables producers to negotiate the sale of the same programmes with broadcasting organisations in other Member States.
However, the principle laid down by the Directive, in keeping with the logic of the internal market, envisages the transfer of rights, under the law of the country in which the communication is introduced, for the entire footprint: in practice, a transfer on a national basis has the effect of fragmenting the market and runs counter to the principle of the Directive.
The fact that the Directive provides for the transmission of programme-carrying signals (Articles 1 and 2(c)) in encrypted form does not lessen the scope of the principle of the transfer of the rights in the country of introduction of the communication for the entire footprint: whether transmission is unscrambled or encrypted, the footprint can serve as the basis for exploiting the rights.
It is particularly interesting to note that the encryption of programmes is a factor in favour of fairer remuneration for rightholders, to the extent that a decoder has to be made available to the viewer (whether a subscription has been paid or not), which makes it possible to check very accurately the size of the actual audience.
The Commission wishes to emphasise the full scope of the law applicable in the context of satellite broadcasting: the transfer of rights for a programme applies for the entire footprint, and only the contractual relations between the rightholders or the collecting societies representing them and the broadcasting organisations, relating to the entire footprint, are compatible with the principles of the internal market."
Does Directive 93/83/EEC provide a defence?
i) Article 4 which preserves the rights of performers, phonogram producers and broadcasting organisations; and Article 5 which leaves intact the protection of copyright.
ii) Recital 26 which provides that a Member State may allow for a rebuttable presumption that there is authorisation to exploit the performers' rights contained within a performance communicated by satellite (and hence, by implication, confirms that exhaustion is not an automatic consequence of the communication).
Articles 28-30 EC (free movement of goods) and 49 EC (services)
"The provisions of the Treaty relating to the freedom to provide services do not preclude an assignee of the performing right in a cinematographic film in a Member State from relying upon his right to prohibit the exhibition of that film in that State, without his authority, by means of cable diffusion, if the film so exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original owner of the right"
"12. A cinematographic film belongs to the category of literary and artistic works made available to the public by performances which may be infinitely repeated. In this respect the problems involved in the observance of copyright in relation to the requirements of the Treaty are not the same as those which arise in connection with literary and artistic works the placing of which at the disposal of the public is inseparable from the circulation of the material form of the works, as in the case of books or records."
"… The right of a copyright owner and his assigns to require fees for any showing of a film is part of the essential function of copyright in this type of literary and artistic work."
"15. Whilst Article  of the Treaty prohibits restrictions upon freedom to provide services, it does not thereby encompass limits upon the exercise of certain economic activities which have their origin in the application of national legislation for the protection of intellectual property, save where such an application constitutes a means of arbitrary discrimination or a disguised restriction on trade between Member States. Such would be the case if that application enabled parties to an assignment of copyright to create artificial barriers to trade between Member States.
16. The effect of this is that, whilst copyright entails the right to demand fees for any showing or performance, the rules of the Treaty cannot in principle constitute an obstacle to the geographical limits which the parties to a contract of assignment have agreed upon in order to protect the author and his assigns in this regard. The mere fact that those geographical limits may coincide with national frontiers does not point to a different solution in a situation where television is organised in the Member State largely on the basis of legal broadcasting monopolies, which indicates that a limitation other than the geographical field of application of an assignment is often impracticable.
17. The exclusive assignee of the performing right in film for a whole of a Member State may therefore rely upon his right against cable television diffusion companies which have transmitted that film on their diffusion network having received it form a television broadcasting station established in another Member State, without thereby infringing Community law."
"Here the relevant right is an element of copyright, namely performing right. Everyone who has submitted observations to the Court recognises that one cannot apply in the domain of performing right the doctrine of "exhaustion" as it applies in the domain of the marketing of goods. It is of the essence of a performing right that it enables the owner of it authorise or forbid each and every performance of the work to which it relates.
… I do not think that this Court can hold that Community law denies to the owner of the performing right relating to a work such as a film the power – as part of the specific subject-matter of that right – to authorise or forbid the cable diffusion of a broadcast of the work."
15.…the mere fact that the owner of a copyright in a film has granted to a sole licensee the exclusive right to exhibit that film in the territory of a Member State and, consequently, to prohibit, during a specified period, its showing by others, is not sufficient to justify the finding that such a contract must be regarded as the purpose, the means or the result of an agreement, decision or concerted practice prohibited by the Treaty.
16. The characteristics of the cinematographic industry and of its market in the Community, especially those relating to dubbing and subtitling for the benefit of different language groups, to the possibilities of television broadcast, and to the system of financing cinematographic production in Europe serve to show that an exclusive exhibition license is not, in itself, such as to prevent, restrict or distort competition.
17. Although copyright in a film and the right deriving from it, namely that of exhibiting the film, are not, therefore, as such subject to the prohibition contained in Article , the exercise of those rights may, none the less, come within the said prohibitions where there are economic or legal circumstances the effect of which is to restrict film distribution to an appreciable degree or to distort competition, on the cinematographic market, regard being had to the specific characteristics of that market.
18. Since neither the question referred to the Court nor the file on the case provides any information in this respect, it is for the national court to make such enquiries as may be necessary. "
"15. However, as the Court pointed out in Case 158/86 Warner Brothers and Metronome Video v Christiansen  ECR 2605, literary and artistic works may be the subject of commercial exploitation by means other than the sale of the recordings made of them. That applies, for example, to the rental of video-cassettes, which reaches a different public from the market for their sale and constitutes an important source of revenue for makers of films.
16. As the Advocate General has rightly indicated in point 14 of his Opinion, the release into circulation of a sound recording cannot therefore, by definition, render lawful other forms of exploitation of the protected work, such as rental, which are of a different nature from sale or any other lawful form of distribution. Just like the right to present a work by means of public performance (see, in that connection, Case 395/87 Ministère Public v Tournier  ECR 2521, paragraphs 12 and 13), the rental right remains one of the prerogatives of the author and producer notwithstanding sale of the physical recording."
Competition law (Article 81 EC)
6A: The Second Claimant receives the World Feed at facilities in Greece which are shared with the Third Claimant. The Second Claimant adds a separate Greek commentary and graphics to the World Feed. The Third Claimant encrypts and compresses the signal, and transmits it to an uplink station situated in Greece. The Third Claimant enters into contracts with subscribers in the territory of Greece to authorise them to receive the signal on payment of a charge.
58. The Foreign Broadcasters are prohibited from supplying SMART cards for use in the United Kingdom"
"7. Under the terms of the license under which the Foreign Broadcasters received transmissions of the Matches from Premier League Productions each Foreign Broadcaster ("Licensee") is required to undertake that it shall "procure that no device (including but not limited to any "smart card" and any decoding equipment which is necessary to decode or decrypt any such Transmission) shall be knowingly authorised or enabled by or with the authority of the Licensee and/or any Permitted Sub-Licensee and/or any distributor, agent or employee of the Licensee and/or any Permitted Sub-Licensee so as to permit any person to view any such Transmission outside the Territory [which Territory does not include the UK] in an intelligible form." This form of wording is present in the licence agreements... applicable to the "ART" cards and "Nova" smart cards referred to in the statements of case to date. Clauses to this effect are included in all relevant overseas broadcasting agreements"
This, it will be recalled, is reflected in clause 12(1)(b)(i) of the NetMed Agreement.
"17. In so far as the prohibition alleged in the first sentence of paragraph 41 is based upon or the consequence of agreements between undertakings or concerted practices, such prohibition has as its object or effect the prevention, restriction or distortion of competition within the common market. In particular such prohibition purports to limit or control the markets to which broadcasters are permitted to supply their broadcasting services and/or to supply decoder cards, contrary to Article 81 (1) (b) EC.
18. The alleged prohibition is accordingly void and cannot be relied upon as a basis for contending that the Defendants' customers are not entitled to receive the satellite broadcasts concerned.
18A. Contract terms or other purported restrictions imposed by the Second and/or Third Claimant on holders of Nova cards which purport to restrict the use of Nova cards to the territory of Greece (including in particular the contract terms alleged in the last sentence of paragraph 6A) are the consequence or effects of the agreements or concerted practices referred to in paragraph 17 above, and/or are themselves agreements between undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the common market, in that they purport to limit or control the markets where traders are permitted to supply Nova decoder cards and to restrict the ability of persons in Member States other than Greece to receive Nova broadcasts."
"1. The Defendants' case under Article 81 EC relates solely to the prohibition on the Foreign Broadcasters which is pleaded by the Claimant in the first sentence of paragraph 10 of its Particulars of Claim….and as further particularised in Responses 6 and 7 in its Further Information Responses served … on 21 March 2007.
2. The Defendants contend that the agreements as pleaded in Response 7 between the Claimant and its Licensee in each territory… breach Article 81 in so far as they contain or… reflect the term pleaded in Response 7. Alternatively the insertion of such terms into the said agreements to constitute a network of agreements providing territorial protection for each Foreign Broadcaster constitutes a concerted practice to which the Claimant and its Licensees and sub-Licensees are parties.
3. The Defendants contend that steps taken to implement the prohibition such as steps taken by Foreign Broadcasters to prevent the circulation or use of decoder cards outside their respective territories or steps taken by the Claimant to induce the Foreign Broadcasters to take such steps, are the unlawful consequences of the above pleaded breach of Article 81 EC. "
Q. … Those are reasons for imposing restrictions. But the point I am putting to you is: if the restriction were removed, there would be increased competition, or in effect there would be competition where there isn't any at the moment, between Premier League matches carried by Nova and Premier League matches carried by Sky?
A. Yes. That's natural.
Q. And therefore the purpose of imposing the restriction is in order to prevent this competition between your co-licensees in different territories?
A. Yes, that is one reason.
Q. And –
A. Because they have bought exclusive rights.
Q. Yes. If you were to remove the restriction, it would have significant and substantial effects, wouldn't it?
Q. And that's your whole case?
Q. And of course, the restriction or, if you like, the network [of] restrictions operates both ways; in that it prevents Sky from responding to orders for decoder cards from outside the United Kingdom; correct?
Q. And in fact, if we look at the pattern across Europe, you have walled off the territory of each licensee from each other?
Q. If the restriction were removed, the effect of that would be, for example, that Sky would lose out because of the competition from decoder cards coming in from other member states, Greece and others?
Q. Sky would gain, to an extent, because they could perhaps make presales [more sales] of decoder cards into other member states?
A. Potentially, yes.
Q. And your concern -- and indeed, the export of Sky cards into other member states would of course result in competition in those states between Sky's showings of Premier League matches and the matches carried by your licensees in those territories?
A. Yes, of course.
"7. In this connexion it must be held that, by its very nature, a clause prohibiting exports constitutes a restriction on competition, whether it is adopted at the instigation of the supplier or the customer since the agreed purpose of the contracting parties is the endeavour to isolate a part of the market."
"53. It should be observed that those two sets of considerations relate to two legal situations which are not necessarily identical. The first case concerns a so called open exclusive licence or assignment and the exclusivity of the licence relates solely to the contractual relationship between the owner of the right and the licensee, whereby the owner merely undertakes not to grant other licences in respect of the same territory and not to compete himself with the licensee on that territory. On the other hand, the second case involves an exclusive licence or assignment with absolute territorial protection, under which the parties to the contract propose, as regards the products and the territory in question, to eliminate all competition from third parties, such as parallel importers or licensees for other territories."
"61. The Court had consistently held (cf. Joined Cases 56 & 58/64 Consten & Grundig v. Commisson  ECR 299) that absolute territorial protection granted to a licensee in order to enable parallel imports to be controlled and prevented results in the artificial maintenance of separate national markets, contrary to the Treaty."
"121 While it has been accepted since then [Consten and Grundig v Commission] that parallel trade must be given a certain protection, it is therefore not as such but, as the Court of Justice held, in so far as it favours the development of trade, on the one hand, and the strengthening of competition on the other hand, …… that is to say, in this second aspect, in so far as it gives final consumers the advantages of effective competition in terms of supply or price …. Consequently, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as the agreement may be presumed to deprive final consumers of those advantages."
i) the product and geographic market, addressing such questions as whether there are separate markets for decoder cards for use on commercial and residential premises;
ii) market conditions generally, such as the structure and size of the market, current market conditions and the importance of the grey market;
iii) the counterfactual, namely the impact on competition if exclusive territorial licensing could not be used to obtain remuneration for the exploitation of sports rights;
iv) ancillary restraints, that is to say the extent to which exclusive territorial licensing is necessary to give effect to collective exploitation of sports rights as approved by the Commission;
v) effect on trade between Member States;
vi) anti-competitive effect.