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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> The Football Association Premier League Ltd v British Sky Broadcasting Ltd & Ors  EWHC 2058 (Ch) (16 July 2013)
Cite as:  ECDR 14,  EWHC 2058 (Ch)
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Fetter Lane, London, EC4A 1NL
B e f o r e :
| THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED
|- and -
|BRITISH SKY BROADCASTING LIMITED
BRITISH TELECOMMUNICATIONS PLC
EVERYTHING EVERYWHERE LIMITED
TALKTALK TELECOM LIMITED
TELEFÓNICA UK LIMITED
(6) VIRGIN MEDIA LIMITED
The Defendants did not appear and were not represented
Crown Copyright ©
MR JUSTICE ARNOLD :
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
The present application
FAPL and its rights
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.
The legal framework
Are the Defendants service providers?
Do the operators and users of FirstRow infringe FAPL copyrights?
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 communications to the public by electronic transmission, and in relation to a work includes-
(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."
"Right of communication to the public of works and right of making available to the public other subject-matter
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.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article."
i) Is there a communication of copyright works by way of electronic transmission?
ii) Is there a communication to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their communication to the original public?
iii) Does the act of communication to the public take place in the UK? If the communication originates from outside the UK, that depends on whether it is targeted at the public in the UK.
"22. … Directive 2001/29 does not define the concept of 'communication' exhaustively. Thus, the meaning and scope of that concept must be defined in the light of the context in which it occurs and also in the light of the objective referred to in paragraph 20 above.
23. It follows, in particular, from recital 23 in the preamble to Directive 2001/29 that the author's right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. In addition, it is apparent from Article 3(3) of that directive that authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public.
24. If follows that, by regulating the situations in which a given work is put to multiple use, the European Union legislature intended that each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question.
25. Those findings are, moreover, supported by Articles 2 and 8 of Directive 93/83, which require fresh authorisation for a simultaneous, unaltered and unabridged retransmission by satellite or cable of an initial transmission of television or radio programmes containing protected works, even though those programmes may already be received in their catchment area by other technical means, such as by wireless means or terrestrial networks.
26. Given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a 'communication' within the meaning of Article 3(1) of Directive 2001/29. Consequently, such a retransmission cannot be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public.
27. That conclusion cannot be undermined by TVC's objection that the making of the works available over the internet, as was done in the case in the main proceedings, is merely a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area.
28. Admittedly, it follows from the case-law of the Court that a mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a 'communication' within the meaning of Article 3(1) of Directive 2001/29 (see, to that effect, Football Association Premier League and Others, paragraph 194, and Airfield and Canal Digitaal, paragraphs 74 and 79).
29. Thus, the intervention of such a technical means must be limited to maintaining or improving the quality of the reception of a pre-existing transmission and cannot be used for any other transmission.
30. In the present case, however, the intervention by TVC consists in a transmission of the protected works at issue which is different from that of the broadcasting organisation concerned. TVC's intervention is in no way intended to maintain or improve the quality of the transmission by that other broadcasting organisation. In those circumstances, that intervention cannot be considered to be a mere technical means within the meaning specified in paragraph 28 above."
"32. In that connection, it follows from the case-law of the Court that the term 'public' in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (see, to that effect, SGAE, paragraphs 37 and 38 and the case law cited).
33. As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. In that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively (SGAE, paragraph 39).
34. In that context, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time.
35. In the present case, it should be noted that the retransmission of the works over the internet at issue in the main proceedings is aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a television licence in that State. Those people may access the protected works at the same time, in the context of the 'live streaming' of television programmes on the internet.
36. Thus, the retransmission in question is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, it must be held that, by the retransmission in question, the protected works are indeed communicated to a 'public' within the meaning of Article 3(1) of Directive 2001/29."
"37 … TVC contends that the retransmission at issue in the main proceedings does not satisfy the requirement that there must be a new public, which is none the less necessary within the meaning of the judgments in SGAE (paragraph 40), Football Association Premier League and Others (paragraph 197), and Airfield and Canal Digitaal (paragraph 72). The recipients of the retransmission effected by TVC are, it submits, entitled to follow the televised broadcast, identical in content, using their own television sets.
38. In that connection, it should be noted that the situations examined in the cases which gave rise to the abovementioned judgments differ clearly from the situation at issue in the case in the main proceedings. In those cases, the Court examined situations in which an operator had made accessible, by its deliberate intervention, a broadcast containing protected works to a new public which was not considered by the authors concerned when they authorised the broadcast in question.
39. By contrast, the main proceedings in the present case concern the transmission of works included in a terrestrial broadcast and the making available of those works over the internet. As is apparent from paragraphs 24 to 26 above, each of those two transmissions must be authorised individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public. In those circumstances, it is no longer necessary to examine below the requirement that there must be a new public, which is relevant only in the situations on which the Court of Justice had to rule in the cases giving rise to the judgments in SGAE, Football Association Premier League and Others and Airfield and Canal Digitaal."
Communication to the public by the operators of FirstRow
"The defendant has provided a service which, upon payment of a weekly subscription, enables its premium members to identify films of their choice using the Newzbin cataloguing and indexing system and then to download those films using the NZB facility, all in the way I have described in detail earlier in this judgment. This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants' films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves. As a result, I have no doubt that the defendant's premium members consider that Newzbin is making available to them the films in the Newzbin index. Moreover, the defendant has provided its service in full knowledge of the consequences of its actions."
"I would add that I see nothing in Football Dataco v Sportradar to exclude the possibility that more than one person may be involved in an act of communication to the public. In the present situation, the communication to the public involves both the operators of Websites, who provide a mechanism specifically designed to achieve this, and the users, who provide the actual recordings. (Even if I am wrong about this, the operators may still be liable on the grounds of authorisation and joint tortfeasance.)"
i) The website is an English language website.
ii) The advertising on FirstRow includes adverts for companies located in the UK and products consumed in the UK.
iii) FirstRow provides access to a large number of competitions which are extremely popular with UK audiences. In particular, the amount of Premier League content on the website is up to 11% whilst a Premier League match is being played.
iv) As noted above, FirstRow is a very popular site in the UK.
v) Between 12 and 13.7% of the worldwide traffic to the site comes from the UK.
vi) FirstRow is discussed on internet blogs and forums, where a significant proportion of the internet traffic to those blogs and forums comes from the UK.
Communication to the public by users of FirstRow who are publicans
"… 'communication to the public' within the meaning of Article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house."
Authorisation by the operators of FirstRow
Do the users and/or operators use the Defendants' services to infringe?
Do the Defendants have actual knowledge?
Proportionality and discretion
i) As between FAPL and the Defendants, the Defendants do not oppose the making of the orders and the terms of the orders have been agreed between FAPL and the Defendants. The costs to the Defendants of implementation are modest and proportionate.
ii) The orders are necessary to protect the copyrights of FAPL and the supporting rightholders, which are being infringed on a large scale. Given the difficulty of identifying, let alone bringing proceedings against, the operators of FirstRow, no other effective remedy is open to FAPL in this jurisdiction.
iii) The orders are also necessary, or at least desirable, in order to protect the sporting objectives which lie behind the Closed Period, and in that sense are in the public interest. This is a legitimate factor to take into account: see Rugby Football Union v Viagogo Ltd  UKSC 55,  1 WLR 3333 at .
iv) While FirstRow features international content some of which may not be protected by copyright or may be licensed, the vast bulk of the content which is likely to be of interest to UK users infringes the rights of FAPL and the supporting rightholders.
v) The orders are narrow and targeted ones, and they contain safeguards in the event of any change of circumstances. While they are unlikely to be completely efficacious, since some users will be able to circumvent the technical measures which the orders require the Defendants to adopt, it is likely that they will be reasonably effective.
"The operator(s) of the Target Website (as defined in the Schedule to this order) and the operators of any other website who claim to be affected by this Order, are to have permission to apply to vary or discharge this Order insofar as it affects such an applicant, any such application to be on notice to all the parties and to be supported by materials setting out and justifying the grounds of the application. Any such application shall clearly indicate the status of the applicant and indicate clearly (supported by evidence) that it is the operator of the website which is the subject of the application."