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Court of Appeal confirms Premier League’s right to prevent use in commercial premises of European domestic decoder cards

09/11/16

The Court of Appeal (Tomlinson and Floyd LLJ) has today handed down judgment in the case of Football Association Premier League v Luxton [2016] EWCA Civ 1097. It decides that Mr Luxton’s appeal against the Order of Mrs Justice Rose granting the Premier League summary judgment against him in relation to the use of a satellite decoder card authorised for use only in domestic premises in Denmark to show live Premier League matches including copyright works owned by the Premier League to customers in his pub should be dismissed.

Although it was accepted that relevant decoder card was not authorised for use in commercial premises, Mr Luxton had sought to defend the action for infringement of the Premier League’s copyright on two grounds. He first alleged that the proceedings were in reality an illicit attempt on the part of the Premier League to preclude the use by Mr Luxton of a foreign decoder card to receive broadcasts from a foreign broadcaster within the EU and that in commencing and pursuing the proceedings the Premier League was acting pursuant to a mutual understanding with one of its UK exclusive licensees to prevent such use contrary to Articles 56 and/or 101 TFEU. Secondly he alleged (based on the witness statement of the supplier of the relevant card to the effect that he had tried but failed to secure a commercial card from Denmark) that the arrangements between the Premier League and its exclusive licensees elsewhere in Europe (which were also alleged to be contrary to Articles 56 and/or 101 TFEU) had prevented Mr Luxton from being supplied with a foreign decoder card authorised for use in commercial premises.     

In granting summary judgment, Mrs Justice Rose had concluded that there was not a sufficient link (or nexus) as a matter of law between the unlawful practices alleged against the Premier League and Mr Luxton’s infringement of the Premier League’s copyright. The Court of Appeal agreed, holding that the right relied upon by the Premier League in the present case to prevent the unauthorised communication of its copyright works to the public arose from the fact the card being used was only authorised for use in domestic premises. That right did not depend in any way on the card being used by Mr Luxton being a foreign card and consequently the exercise of its right by the Premier League was not capable of reinforcing the alleged unlawful agreements to partition the European market precisely because it was not a right which depended in any way on the territory in which the use of the card was being made. Further, it could not accurately be said, except perhaps in the loosest possible and a legally irrelevant sense, that Mr Luxton’s use of the domestic card was the consequence of the Premier League’s agreements and practices.

The judgment of the Court of Appeal is here.

Judgment

Helen Davies QC appeared for the Premier League both in the Court of Appeal and before Rose J.

Sarah Ford appeared for Mr Luxton before Rose J.