The game is finally over for the pub landlord accused of copyright infringement by the Football Association Premier League.
The latest in a string of copyright infringement cases brought by the Football Association Premier League ("FAPL") against publicans has resulted in a resounding victory for the home team, the FAPL.
At first instance, the High Court granted summary judgment against Mr Luxton, the owner of a pub, for copyright infringement of the FAPL logos and on screen graphics for use of a domestic decoder card in the UK which was provided by a Danish broadcaster. The matter was appealed to the Court of Appeal who dismissed Mr Luxton's appeal and upheld FAPL's claim for copyright infringement.
Mr Luxton was the licence holder of a public house in Swansea, who obtained a satellite decoder card from a Danish broadcaster and relayed a live feed of Premier League football matches, which contained FAPL's logos and onscreen graphics.
Mr Luxton obtained a domestic decoder card (primarily used by individuals) rather than a public or commercial decoder card (primarily used by businesses).
A novel point in this case was that Mr Luxton provided significant evidence to prove he had purchased a commercial card but unbeknown to him, he had been provided with a domestic card.
FAPL sought injunctive relief for copyright infringement on the basis it had not consented to communication of its copyright to members of the public in Mr Luxton's pub.
Mr Luxton made the two connected arguments, summarised as follows:
- FAPL were unlawfully attempting to preclude the use of a foreign (EU) decoder cards. The effect was to isolate the UK market from the continental market, contrary to EU law and past case law.
- FAPL's actions in relation to point 1 prevented Mr Luxton from being supplied with a foreign commercial card and that as these arrangements were (allegedly) unlawful the FAPL should be prevented from exercising its copyright in this instance.
FAPL summarised response was as follows:
- Mr Luxton was using a decoder card authorised for domestic use, which tend to be cheaper and more readily available than commercial cards. It was their right to prevent the communication to the public of the copyright works without their consent and that this was consistent with the freedom to provide services in the EU.
- If Mr Luxton were correct then the consequence (in similar circumstances) would be that a user could always argue that at least part of FAPL’s purpose in litigating such matters was to divide the market.
- The chain of events which led to Mr Luxton’s use of the domestic card was unrelated to (if any) illicit agreements/practices. At all times there were UK commercial cards available and it was therefore not the effective cause of the infringement.
- Mr Luxton communicated the copyright works to the public by showing matches to members of the public in Mr Luxton's pub and such communication was without FAPL's consent.
Perhaps unsurprisingly the Court sided with FAPL on all grounds.
The fact that Mr Luxton set out to obtain a commercial card did not assist him in this matter, intent is of no relevance in civil copyright infringement actions (other than in assessing damages) and, in any event, FAPL themselves didn't prevent Mr Luxton from obtaining a commercial card. Furthermore the Court referred to the fact that the FAPL's rights could equally be brought against a publican using a UK domestic card.
Mr Luxton's representatives also put forward an argument for FAPL to recover only the difference between the commercial and domestic rate rather than granting an injunction. FAPL argued, and the Court agreed, that this would have far reaching consequences and, in effect, seeks a retrospective and prospective compulsory licence to use the copyright works.
Game over or play on?
Whilst the decision is firmly in favour of FAPL it is perhaps unsurprising given the facts and, in particular, that Mr Luxton used a domestic card. One of the points made by Mr Luxton's representatives was that the FAPL's wider actions have caused foreign broadcasters to refuse to provide commercial cards outside of their territories, thus starving the market of foreign commercial cards meaning that it is extremely difficult for publicans to get hold of them.
The decision brings about the possibility of future litigation, or Commission action, regarding the FAPL's activities in restricting the market in such a way but also adds weight to the increasing opinion that use of a foreign commercial card provides a publican with at least an arguable defence to a similar claim by FAPL.
The ever increasing value of broadcasting Premier League matches is such that this certainly won't be the last we hear on this subject. For now though the 90 minutes (plus injury time) are up for Mr Luxton.