Judge finding defendants having defence – Whether defence ought to be limited
Football Association Premier League Ltd v QC Leisure and others and other cases: Court of Appeal, Civil Division: 20 December 2012
Three actions were tried together as they raised similar issues. The claimant's activities included organising the filming of Premier League football matches and licensing the rights to broadcast them. The matches were broadcast by way of an encrypted signal. Publicans who wished to screen Premier League football matches in their pubs had to access the broadcast via a licensed broadcaster, for example by having a Sky subscription and using a Sky satellite decoder card.
Foreign satellite decoder cards, some of which could be obtained considerably more cheaply than under a Sky subscription, had been sold in the UK to allow Premier League matches to be shown in pubs. Two of the actions were brought against suppliers of equipment and satellite decoder cards to pubs and bars, which enabled the receipt of non-Sky channels. The third action was against licensees or operators of four pubs that had shown live Premier League matches broadcast on channels produced by the Arab Radio and Television network.
Issues arose, inter alia, as to whether the defendants in that action had infringed the copyright of the claimant by performing, playing or showing the works in public contrary to section 19 of the Copyright, Designs and Patents Act 1988 and by communicating the works to the public contrary to section 20 of that act. Related to that issue was the question whether the defendants in the other actions had authorised such infringement by those publicans. The provisions of the act were amended in 2003 by the Copyright and Related Rights Regulations 2003, SI 2003/2498, by which the UK intended to give effect to Council Directive (EEC) 92/100 (on rental right and lending right and on certain rights related to copyright in the field of intellectual property). The Regulations substituted an entirely new section 20 of the act which purported to implement article 3 of the Copyright Directive.
Following a preliminary ruling from the European Court of Justice (see  All ER (D) 26 (Oct)), the judge in the Chancery Division concluded, in favour of the defendants and contrary to the submissions of the claimant, that section 72(1)(c) of the act was a complete defence to the allegation of infringement of the claimant’s film copyright under section 20 (in addition to section 19). He acknowledged that the Copyright Directive did not permit a defence in the terms of section 72(1)(c) and that the legislature had intended section 20 to implement article 3. He considered that, nevertheless, it would exceed the limits of the principle in Marleasing SA v La Comercial Internacional de Alimentacion SA (the Marleasing principle) of conforming interpretation to limit section 72(1) as the claimant contended. The claimant appealed.
It contended that section 72(1)(c) of the act ought to be interpreted, in accordance with the Marleasing principle, as applying only to the restricted act specified in section 19(3); it was in accordance with the Marleasing principle to interpret section 72(1)(c) as implicitly limited to restricted acts within section 19(3) on the ground that such an interpretation would give effect to both the government's intention to comply with the Copyright Directive and also to the government's belief that section 72(1)(c) would continue to be limited to restricted acts within section 19(3) as before. Alternatively, if it failed in its primary argument, it contended that a conforming interpretation ought to be given to section 72(1)(c) by restricting it to analogue transmissions. The appeal would be dismissed.
(1) In considering the legitimate limits of a Marleasing-conforming interpretation, the practical consequences of that interpretation, the plain absence of any intent on the part of the government to bring them about and its equally plain mistake as to the relationship between the amended section 20 and the amended section 72(1) and (1B), the impact on the coherence of the statutory scheme, and the lack of any certainty as to how the government or parliament would have addressed those issues if they had appreciated them (including initiating a debate within the EU), could not simply be swept aside by pointing to an overall intention on the part of the government to comply with the Copyright Directive.
All those matters were a clear indication that to limit the clear and unambiguous introductory words in section 72(1) as the claimant suggested would go beyond legitimate interpretation by the court and would encroach on parliament’s legislative role (see  of the judgment). Marleasing SA v La Comercial Internacional de Alimentacion SA: C-106/89  ECR I-4135 applied.
(2) It was perfectly clear that the government at no stage had brought its mind to bear upon the possibility of a restriction of section 72(1)(c) of the act to analogue. It had not consulted on it and no rational reason had been given for distinguishing between digital and analogue in the context of films or for distinguishing it in that respect between films and other copyright works in section 72(1). In the circumstances and in the light of the clear and unambiguous opening words in section 72(1), that it was permissible to restrict section 72(1)(c) to analogue simply on the ground that the over-arching intention of the government was to give effect to the Copyright Directive.
The defendants accordingly had a defence under section 72(1)(c) but only because the UK had failed to implement the Copyright Directive by giving a wider exception to the article 3 right than was permitted under article 5 (See  of the judgment). Decision of Kitchin J  All ER (D) 115 (Feb) affirmed.