Pub footy: Kitchin-sink drama goes on
Lord Justice Kitchin’s judgment on 3 February reached the dizzying heights of abstruse legal debate about the relative merits of European law in relation to UK legislation and interpretation.
As a result, no-one really won. Both sides lost basic arguments, but of course they will all put a gloss on it, as they are bound to do.
For the ordinary publican, however, the question of using foreign satellites to show Premier League football is still of vital importance, given the widespread resentment of Sky’s charges and the cash-strapped situation many licensees find themselves in.
My own view is that this judgment will possibly satisfy the anti-Sky brigade slightly more than the Premier League and its contracting parties.
The reason for this is that the judge has found basically that it would be wrong to allow an injunction to prevent EU satellite suppliers making their equipment available, as long as they could get round copyright issues.
He is clear that the decision of the European Court that the restriction on competition brought about by the various national agreements is void and cannot prevent the import of decoders and cards.
However, he also found that, contrary to the arguments put up by counsel for the suppliers, the use by publicans of the satellite transmissions via a TV in the bar constituted ‘communication to the public by electronic means’ and therefore they could be found guilty of breaching copyright and the suppliers could be held liable for authorising that breach.
But he also held, after some discussion, that the relevant provisions in the Copyright, etc and Trade Marks Act meant the showing or playing of a broadcast in a pub to members of the public who have not paid for admission does not infringe any copyright in any film included in the broadcast.
This leaves the question of the copyright elements in the anthem, logos and other ancillary material that forms part of the broadcast.
This was the basic claim for breach of copyright that the Premier League and, by extension Sky, was relying on. This part has been upheld and it could well be that when the Karen Murphy case comes up for decision later this month that element will be clarified.
But Kitchin has left the door open a little. The refusal to grant an injunction was significant, because it is what the League wanted, so the decoder market could be stopped in its tracks.
But the judge said the defendants that are continuing to trade “must be entitled to carry on their businesses in a way that avoids infringement of the Premier League’s copyrights if they are able to do so”.
He was not suggesting that they would be able to, but he was not prepared to say that they had to stop doing anything at all with imported equipment.
It has to be remembered this case was not directly about the contracts the Premier League has made with Sky and others to restrict copyright use across Europe.
They still have to cross that bridge, and if someone can come up with an alternative package that gets round the copyright issues, there could still be a window of opportunity for alternative viewing.
But one plank of the foreign satellite platform trying to get licensees off the hook has been taken away. Showing copyright material on the pub TV is illegal and that will undoubtedly be rigidly enforced for as long as this judgment stands.
