The Football Association Premier League Ltd v Luxton & Anor

This is a renewed application for permission to appeal against the decision of Mrs Justice Rose of 30 January 2014, pursuant to which she gave summary judgment in a copyright claim to the claimants, the Football Association Premier League, against Mr Luxton. Mr Luxton is a pub landlord at a pub called the Ridings in Swansea. FAPL (as I shall call them) own the copyright in certain on screen graphics which they transmit with their live feed of Premier League football matches to broadcasters. The broadcasters in turn issue their customers with decoded cards to enable the customers to view the matches.

It is an infringement of copyright to communicate a copyright work to the public and the decision of the European Court of Justice in FA Premier League v Others and QC Leisure v Others (No. 2) and Murphy v Media Protection Services joint cases; see 40308 and see 42908 [2012] FSR 1 shows that to show live television broadcast of football matches, including copyright works, in public is likely to infringe the copyright in the works included in the broadcast.

Mr Luxton acquired a decoding card via a UK intermediary ultimately from VS Sat AS, a Danish broadcaster licensed by the FAPL. Unfortunately for Mr Luxton, the card he acquired was for domestic use only, although it would appear that he did not know this. Such cards are cheaper to buy than commercial cards, but the licence thereby acquired only permits the purchaser to show the broadcasts in his home. Mr Luxton has been using the card at various stages in 2012 to show broadcasts in the Ridings to customers of the pub and therefore in a commercial not a domestic setting.

The defence served on behalf of Mr Luxton asserts that at least until October 2011, FAPL operated a system of only granting territorial licences to broadcasters to transmit live matches in their territories. In QC Leisure the ECJ decided on that date that certain aspects of the grant of territorial exclusivity were unlawful. Mr Luxton asserts that the proceedings in this case are an attempt to preclude the use by him of a foreign decoding card to receive broadcasts from a foreign broadcaster within the EU pursuant to some illegal understanding between FAPL and the broadcasters which continues. Such an understanding would amount to a breach of Articles 101 and/or 56 of the Treaty on the Functioning of the European Union. The defence asserts that he is lawfully entitled to use a foreign decoded card in the UK.

The judge accepted, for the purposes of the summary judgment application, that she should assume that foreign broadcasters are still behaving as if they did not have to supply commercial cards for those who operate outside their territory. That was no doubt vigorously denied but accepted for the purposes of the application. Investigations by Mr Luxton’s solicitor had shown that there was some substance in this in addition to the fact that Mr Ibrahim (that is to say Mr Luxton’s own contact in the UK) said that he had been unable to obtain supplies of commercial cards and was therefore forced to install a domestic card intending to replace it with a commercial card as and when further supplies became available to him; they did not. It was argued on behalf of Mr Luxton that these facts shows that there was sufficient nexus between the alleged continuing illegal arrangements which are preventing Mr Luxton from obtaining a commercial card and his infringing conduct comprising using a domestic card.

I refused permission to appeal on the papers because, as the matter then appeared to me, it seemed that there was no real nexus present in this case. The fact that the defendant was using a domestic card meant that he was not licensed. He would be infringing whether he used a UK supplied domestic card or a foreign domestic card because he was showing broadcasts in a commercial setting, therefore, as it then appeared to me, there was not present the relevant nexus. However, having listened to Mr Howe this morning it seems to me that on the facts which must be accepted and which the judge did accept it may be realistically arguable that a sufficient nexus does exist. If it is indeed the case that the defendant was unable to obtain a card which enabled the showing of these broadcasts in public from any foreign supplier and that this was due to the continuing elicit agreement between FAPL and the broadcasters, then it may be that a sufficient nexus is established. The case raises perhaps, as Mr Howe suggests, a novel question which is where the copyright owner is motivated by two purposes, one of which may result in the illegal partition of the market, but the other of which is legitimate, namely the enforcement of his copyright, whether it is, in those circumstances, a right to say that the defendant has no arguable defence.

It seems to me that at the very least there may be an arguable defence to the remedy which is sought. It may be that the correct remedy here is not an injunction but an order that the defendant pay the difference between the price of a domestic licence and the price of a commercial licence. In that way, the defendant would be prevented from benefitting from what on the face of it might be regarded as an infringement of copyright, whilst at the same time the claimant’s rights and their copyright were properly recompensed. Whether that is the right answer to this case is a matter which will be decided on the hearing of the appeal. I have said enough, I think, to indicate that I regard an appeal as realistically arguable and I grant permission to appeal. The constitution of the court for hearing the appeal should be three Lord Justices. The three Lord Justices to include at least one with IP experience and one other chancery Lord Justice.