The Sky's the limit

Duncan J. Morgan | September 2015

It was reported earlier this year that, between them, Sky and BT Sport have agreed to pay over £5.1 billion for the rights to broadcast football matches from the 2016-17, 2017-18 and 2018-19 seasons of the English Premier League.  Broadcasters in other countries also bid for the rights to show matches abroad, and the price they pay to do so varies depending on the market concerned.  The rights are sold by a company called Football Association Premier League Ltd (FAPL), which runs the Premier League and arranges the filming of the matches.

Therefore, it is clear that the rights to televise Premiership Football are highly prized by broadcasters, and they, alongside the FAPL and indeed other interested parties sometimes take steps, together or separately, to protect the value of those rights.  One of the more famous examples is Football Association Premier League Ltd and Others v QC Leisure and Others.  This case was first heard in the British courts in 2008, though the issues raised in the case led to several further appearances before the British and European courts, and is also behind a legislative change currently being proposed by the UK government. 

The case concerned televised football matches being shown in pubs and other public establishments.  In the UK, pub owners wishing to show Premier League matches need to access the broadcast via a licensed broadcaster, by for example subscribing to Sky and using a Sky satellite decoder card.  However, decoding apparatus which could be used to access broadcasts of the matches by foreign TV stations was available in the UK at prices lower than Sky’s, allowing matches to be shown in UK pubs without the UK broadcaster being paid.  This provoked strong opposition from both FAPL and the UK broadcasters, as, if allowed to continue unchecked, it would seriously affect their ability to monetise their respective rights.  Various actions were consolidated into the above proceedings, some of which were against the people selling the foreign decoders, some against the operators of the pubs using them.

The cases involved many different parties and points of law.  However, for present purposes, the dispute centred around whether FAPL could enforce terms of its exclusive territorial licences with broadcasters in other EU countries, essentially requiring them not to supply decoding devices to people and businesses in the UK.  The British courts referred that question to the Court of Justice of the European Union, which held that allowing FAPL to prevent broadcasters in other Member States of the EU selling apparatus to decode their broadcasts into the UK constituted an unjustifiable restriction on the free movement of goods throughout the EU.

However, just because FAPL could not prevent sale in the UK of apparatus allowing foreign satellite signals to be decoded does not mean that showing such foreign decoded broadcasts in the UK could not constitute copyright infringement.

Amongst other rights, British copyright law provides copyright owners with the right to control how their works are shown and communicated to the public.  As a result, in exchange for a licence fee or other payment, copyright owners often grant limited permission to broadcasters to show or transmit their work to the public.  FAPL licenced Sky to broadcast FAPL’s footage of Premier League matches, Sky add to that footage their own graphics, commentary etc and broadcast it. In turn pub owners who paid the appropriate fees to Sky could lawfully transmit that footage to the public in the UK.  On the face of the matter, those who show foreign decoded signals do not have the requisite permission to transmit the match to the public, and hence infringe FAPL’s copyright.  However, the situation is not as straightforward as that, and to understand why, we need to consider Scarborough landladies in the 1950s.

Section 72(1) of the UK Copyright, Designs and Patents Act 1988 provides that 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 the broadcast, a film (defined as any recording from which a moving image may be produced), or any non-excepted sound recording.  This provision is a hangover from the 1956 Copyright Act, and is intended to shelter the owners of cafes, pubs, hotels etc from the burden of having to obtain licences to have the television on in their establishments, as was discussed at length in Parliament (over 75 pages in Hansard) in the context of a landlady in Scarborough who ran a boarding house with a TV room.

Over the years the scope of the exception now embodied in s72 has been greatly reduced.  As it stands, the exclusion does not apply to all categories of works in which copyright can vest.  For example, showing in public a TV programme which includes within it a dramatic or literary work may still infringe copyright in that dramatic or literary work, even if the copyright in the broadcast or film itself is not infringed.  For example, if a café were show a TV broadcast of a recording of Arthur Miller’s play The Crucible, they would not infringe copyright in the broadcast or the film recording itself due to s72, though the rights in the script (literary work) and performance (dramatic work) would be infringed.

Anyway, back to the football.  The British courts found that the showing of the live footage of the football matches itself was only protected by film copyright, and is hence subject to the s72(1) infringement exemption.  As a result, in order to prevent pubs etc showing Premier League matches without a commercial licence from Sky (or whichever broadcaster is authorised in the UK), bodies such as FAPL have to rely on asserting their copyright in the elements of what is broadcast beyond the raw match footage (e.g. the artistic and musical works embodied by their logos, trailers, introductions etc).

FAPL and the broadcasters are of course unhappy with this state of affairs, as it has made it difficult to prevent pubs who have not paid the UK licensee broadcasting football matches. This deprives the broadcaster of both revenue, and the exclusivity they paid for, thus reducing the commercial utility of the broadcast rights, and potentially reducing their desirability and hence value in the marketplace. 

The government has now stepped in and put forward a consultation document on proposed changes to s72 which will include narrowing its scope so it can no longer be relied on by commercial premises seeking to show exclusive subscription broadcasts in public without the appropriate commercial viewing licence.  This is of course excellent news for broadcasters and rights holders, as it will enable them to make more money by licencing the broadcasts.  Arguably, it will also benefit those establishments who were already paying the UK licensee and they would no longer be at a competitive disadvantage to those who were not.  However, if you are someone who prefers to get their football with, say, a Slovenian commentary for a price lower than that offered by the UK broadcasters, now might be the time to write to the government telling them so.