Copyright in Broadcasts
It's going to be a busy summer of sports; the UEFA European Championship kicks us off on 10 June, shortly followed by Wimbledon and then the Olympics. Many of us will, at some point, head to the pub to watch our favourite sporting heroes battle it out on the global stage and no doubt publicans' eyes will be seeing pound signs at the prospect (especially if the British contingent have a good run).
The cost of obtaining a licence to broadcast Sky Sports, BT Sport or any other sporting channel is, however, an expensive business and some publicans exploit a "loophole" in the law which permits them to show certain footage without a licence in place. Proposed changes to the law will attempt to shackle this practice and publicans (as well as other business owners) should beware of the potential risks of showing broadcasts to the public without an appropriate licence in place.
The Copyright, Designs and Patents Act 1988 ("CDPA") provides copyright owners with various rights allowing them to control the use of their works. This includes the right to control the communication of their works to the public. Section 72 CDPA provides an exception to this rule and currently permits the free public showing or playing of a broadcast (for example, a television or radio broadcast) as well as any non excepted sound recording and any film in that broadcast in a publicly accessible location to which entry is free (such as a pub).
Take, for example, the broadcast of a football match on television. The section 72 exception would apply to raw footage of the match and any films in that broadcast (for example, action replays), but it would not apply to certain music played within that broadcast (such as the theme tune to the programme) or any other categories of works in which copyright can vest (such as artistic and musical works embodied in logos, trailers and introductions etc.).
The FAPL cases
The Football Association Premier League Limited ("FAPL") runs the Premier League and it owns and controls the audio-visual media rights to Premier League football matches. The FAPL records footage of all Premier League matches and licenses the footage to various broadcasters throughout the world. Broadcasters then add their own graphics and commentary etc. to the footage before broadcasting it to their customers. Sky and BT purchased the right to broadcast Premier League matches in the UK over three seasons for a staggering combined total of £5.14bn.
FAPL grants its licensees an exclusive right to broadcast and economically exploit the relevant Premier League football matches in their broadcasting area (the UK in Sky and BT's case). Licensees are required to prevent their broadcasts from being viewed outside of their broadcasting area. This is achieved by encrypting broadcasts so that they can only be viewed through use of a decoder card which customers must pay for.
Despite the above restrictions, it was discovered that non-UK decoder cards (available at a lower price than the UK equivalent) were being used in some UK pubs to access footage of Premier League matches through foreign broadcasters. This created a headache for the FAPL and its UK broadcasters as it affected their ability to control and exploit their respective rights.
As a result, FAPL brought test cases against people selling foreign decoder cards and against the operators of certain pubs found to be using them. The action gave rise to a series of judgments, including a reference to the Court of Justice of the European Union ("the ECJ"). The key decision emanating from the ECJ's judgment was that the granting of an exclusive territorial license requiring a broadcaster not to supply decoder cards which can be used outside the territory covered by the licence restricts competition and constitutes an unjustifiable restriction on the free movement of goods throughout the EU. Furthermore, when the case was returned to the national courts, it was held that the showing of certain audiovisual content (such as the match footage) was permitted as it fell within the section 72 exception.
Therefore, rights holders such as the FAPL could only claim copyright infringement in elements of the broadcast which benefited from separate copyright protection such as certain artistic and musical works. Publicans could attempt to get around this by muting the sound and hiding any logos thereby making it more difficult for the FAPL to take legal action.
The Government has stepped in to clarify and limit the scope of the section 72 exception, and to ensure consistency with EU law (which does not permit the exception of the type provided by section 72 in respect of films which are "cinematographic" works).
The Government's proposal, which was laid before parliament on 9 May 2016, is to remove "film" in its entirety from the section 72 exception. The change would make it much more difficult for publicans to show broadcasts through foreign decoder cards without infringing copyright thus making it easier for rights holders to bring proceedings.
Posted on: 07/06/2016
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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