'Reproduction' and 'Communication to the Public' Rights in EU Copyright Law: FAPL v QC Leisure

Abstract

In Football Association Premier League v QC Leisure, a dispute arose regarding the supply of (genuine) Greek satellite decoder cards to pubs and bars in the UK. The Football Association Premier League grants exclusive territorial licenses to broadcasters in different Member States. In the UK, the exclusive licensee is Sky and in Greece it is Nova, and the subscription fees charged by these broadcasters vary by thousands of pounds. In this case, Greek satellite decoder cards, which cost considerably less, were used by the operators of UK premises to receive live broadcasts of English Premier League football matches from satellite channels outside the UK (ie from Greece).

The claimants brought an action against the defendants (who were suppliers of satellite decoder cards and operators of UK pubs) claiming infringement of Directive 98/84/EC on conditional access and also copyright infringement. In relation to the former claim, the claimants alleged that, by trading in satellite decoder cards intended for use in markets outside the UK, the defendants were dealing in ‘illicit devices’ within the meaning of Article 2(e) of Directive 98/84/EC and section 298 of the UK Copyright, Designs and Patents Act 1988 (‘CDPA’). A question on the meaning of ‘illicit devices’ was referred to the Court of Justice of the European Union (‘ECJ’).

The claimants also argued that the defendants had infringed copyright in elements of the ‘World Feed’, which was a broadcast of the football match together with graphics, inserted logos, the Premier League Anthem, additional video sequences and commentary. Specifically, the claimants argued that a musical work, sound recording, film and various artistic works had been unlawfully reproduced and communicated to the public, within the meaning of Articles 2 and 3 of Directive 2001/29/EC on copyright in the information society (‘Directive 2001/29/EC’) and sections 17 and 20 of the CDPA. Questions on the scope of these rights were also referred to the ECJ.

In addition, a series of legal arguments in relation to the free movement of goods, free movement of services and competition law were raised by the defendants and questions on these issues were also referred to the ECJ.

The FAPL reference contains several difficult questions that range across various areas of EU law; however, this analysis focuses solely on the copyright questions that have been referred to the ECJ, specifically those concerning the rights of reproduction and communication to the public provided by Directive 2001/29/EC. As this Directive reflects the most far-reaching EU harmonisation of copyright law to date, and the rights of reproduction and communication to the public are two of the most fundamental rights granted to copyright owners, the scope of these rights are important matters of ECJ interpretation that will significantly affect intellectual property law throughout the European Union.