The CJEU and IP lawyers haven’t had an easy relationship in recent years: Jacob LJ’s pre-retirement salvo at the start of his judgment in L’Oréal v. Bellure betrayed the mixture of resignation and exasperation that seems to characterise many IP practitioners’ attitude to the recent CJEU, especially in respect of trade mark law. A recent judgment from the Court sees it confronting issues of copyright together with some of its more familiar “Euro” legal territory.
On 4th October, the CJEU handed judgment down in Premier League v. QC Leisure, following an Opinion from Kokott AG, on 3 February this year. The Court’s judgment was in response to questions relevant to the free movement of goods and services; exhaustion of rights; and copyright infringement. The points on free provision of services have been looked at in more detail in another post accompanying this one [LINK], and so here we concern ourselves with the IP-focussed parts of the judgment.
UK pubs – including the Portsmouth establishment of Ms Karen Murphy – had bought Greek decoder cards to give access to digital TV coverage of Football Association Premier League soccer matches. These were significantly cheaper than buying the same cards in the UK for use to show the games in Ms Murphy’s pub. The Premier League contended that the use of these Greek decoder cards, licensed for use in Greece, outside of that country infringed their copyrights. In the UK, this was held to be so, and Ms Murphy attracted a criminal conviction under s. 297(1) Copyright, Designs and Patents Act 1988 (CDPA88).
The decoder cards were, in effect, a parallel import: that is to say, they were not counterfeit, but were authorised and legal products in another jurisdiction, which had been imported into this one. With other products, the doctrine of exhaustion of rights may mean that the product manufacturer cannot licence his product in one jurisdiction, at a fee, and then claim that a further licence [with a fee] is required to move it within the Common Market to another jurisdiction. Essentially, within the EU the manufacturer should only be able to charge such licence fees once.
That logic applies to tangible products, where it is the same product that gets moved about the EU. With an intangible product, such as an electronic file or a further viewing of a television broadcast, is it the same product, or a new product, when the second user accesses it? The Premier League and the defendants joined battle over this issue, and over the issue of whether copyright should subsist at all. The CJEU did not focus its judgment on the issue relating to the doctrine of exhaustion, but answered the questions principally on the bases of freedom of provision of services and the Copyright Directive.
The short version of the CJEU’s view is that it was held that trying to stop the importation of the Greek decoder cards was a fetter on the freedom to provide services, and which was not justified by protection of the Premier League’s intellectual property rights; importation must be allowed. Here, we concern ourselves briefly with what those intellectual property rights were considered to be, and in what they were held to subsist.
The first, most fundamental question addressed was: can a sporting event be subject to copyright? The Court, curiously, held that the answer was no – sports matches are not “an intellectual creation”. Were this a determinative finding, it might pose some difficulties, particularly by analogy to certain categories of dramatic work in which copyright is indeed held to subsist, but it is not; the Court proceeded on the basis that the sporting event is something which might attract copyright nationally. This course was followed in no small part because other aspects of the broadcast than the actual football match (logos, opening credits, theme music and so on) might in themselves attract copyright.
So whilst Ms Murphy’s conviction is now surely to be quashed, following the findings on exhaustion, the question remains at least partly open on copyright infringement. The FA is certainly claiming that this “complex” judgment allows them to assert their IP to prevent broadcast by British pubs using Greek-licensed decoders; they are taking refuge in the part of the judgment (§149) that allows the Premier League to assert copyright in the “other” features of the broadcast, such as the logos, music and so on.
It has been argued persuasively elsewhere that this isn’t really an adequate refuge for the FA, since the reproduction of the signal inside the decoder falls within an exception under Art 5(1) of the Copyright Directive, and at the stage of reproducing the logos and so on by broadcasting them, their broadcast would be merely “incidental”, in the same way that one might inadvertently film a piece of artwork, or some other copyright work, whilst sweeping a video camera through an urban scene. Incidental inclusion would be protected in England and Wales by s. 31(2) CDPA88.
The Court has deftly avoided the full question of whether pub screenings of the matches containing copyright works is of itself something that requires the FA’s permission. It limits itself to the (slightly) narrower question of whether such screenings involve “communication to the public” within Art. 3 Copyright Directive (which they answered in the affirmative).
The “communication to the public” question was considered very narrowly indeed; the High Court’s question was answered, with almost no further comment or embellishment: yes, the act does fall within “communication to the public”, but whether any other ingredients of copyright infringement were to be found was left open. Accordingly, it remains to be seen exactly what the High Court will choose to do with this advice.
In deciding the “communication to the public” point, the CJEU took note of the fact that “the principal objective of the Copyright Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works,” (§186 of the judgment), and that it must be interpreted “in a manner that is consistent with international law” (§189). It appears from the judgment that intention was key here, the Court having noted that “the proprietor of a public house intentionally gives the customers present in that establishment access to a broadcast containing protected works via a television screen and speakers. Without his intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast’s catchment area.” It was on this basis that the second act – transmission to customers – was held indeed to be a “communication to the public” within Art 3 of the Directive (see §§195—207 of the judgment).
So for now, the door hasn’t quite been closed on the rights-holders. It is just about possible that the FA might be able to stop these broadcasts, most likely by relying on reproduction of their musical “anthem” (expect there to be an awful lot more use of this as a regular jingle next time you watch a match).
But the CJEU has quite clearly signalled its intent, through its decision on freedom of provision of services, and additionally – though perhaps less completely – its findings on copyright: such intellectual property as the FA can be found to own will not of itself justify a fetter on the freedom of provision of services. It must be said that it now seems most unlikely that a subsequent referral to the CJEU would buck this trend, and so perhaps the good money has to be on the High Court adopting this same general direction.