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European IP Bulletin, Issue 31, May 2006 - Copyright

Copyright

4. Pubs Win the Right to Show Football on Saturday Afternoon

Following a Crown Court judgment in March 2006, pubs will be able to screen football matches on Saturday afternoons in defiance of the ban imposed by The Union of European Football Associations as long as the pub in question has legally acquired a foreign satellite subscription.

The Union of European Football Associations had banned the screening of Premiership games on Saturday afternoons between 2.45pm and 5.15pm at the request of the Football Association Premier League (“FAPL”). This was defined as the “closed period”.  The FAPL was afraid that fans would stop watching matches live at football stadiums. At the same time the games were broadcasted in other countries across the world.

Mr Gannon, a pub licensee, had purchased a legitimate satellite system and subscription from a Greek-based television company. He was subsequently found guilty of infringing the 1988 Copyright, Designs and Patents Act by Rochdale Magistrates Court. He appealed to the Bolton Crown Court and the conviction against him was overturned. The Crown Court found that Mr Gannon had not acted dishonestly and he had not intended to avoid paying applicable charges for the reception of the programme. In fact, there was no applicable fee available for showing the programme. Moreover, the Court held that the ban could only apply to services originating in Britain.

There could be some 3,000 pubs which have similar satellite-television systems to Mr Gannon and more than 100 are currently facing similar prosecutions. Two previous cases were dismissed earlier this year but previous licensees merely accepted that they had been acting in contravention of the law. The lawyers for Mr Gannon claimed the importance of this case saying that the generic principles would apply to all live satellite broadcasts of the Premiership matches and that prosecutions such as this have only been driven to protect the commercial monopolies of rights holders. On the other hand, the representatives of Media Protection Services (the body which investigates illegal screenings) state that the case was wrongly decided; just because the licensees had paid a foreign broadcaster for a signal, the licensees did not get the rights to show the programme anywhere else but in that specific region. Media Protection Services will continue prosecutions relating to breaches of the “closed period” ban. As there are great interests relating to the right of copyright holders to control the distribution of satellite television programmes regionally, this is not the last word on this issue. Moreover, rulings made in relation to football are applicable to other programmes.

5. Technological Protection Measures and Private Copy Exception: The French Perspective

The recent French case of Stephane x and others v Universal Pictures France and others considered the conflict between modern anti-copying measures and existing legislation permitting certain private copies to be made.  An individual, who had been prevented from copying the movie "Mulholland Drive" from DVD to a video, together with the Consumers’ Federal Union (“UFC”), sued the publishers and distributors of the movie. The plaintiffs claimed that the technological protection measures (“TPMs”) embedded in the DVD which prevented copying were in conflict with the private copy exception provision granted by the French Intellectual Property Code. They sought damages and an order by the court preventing the use of such TPMs. The Court of First Instance rejected the claim, considering that TPMs were in accordance with both the French law and the EU Copyright Directive. However, the Court of Appeal overruled the decision and issued the order requested by the plaintiffs, having found that the TPMs in question were illegal to the extent that they prevented users from benefiting from the private copy exception.

The Defendants appealed to the Court de Cassation, the highest court in the French judicial system. The Court found in their favour. It referred to Article 9.2 of the Berne Convention which permits the private reproduction of copyrighted work, provided that it does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The Court also confirmed that the EU Copyright Directive should be followed as French law must be interpreted in accordance with it.

The main effect of TPMs was to ensure that the normal exploitation of works could actually be attained. In this case, private copies would interfere with such exploitation. The Court’s reasoning was guided by the evidence that the digital environment now provides people with the opportunity to make a large number of copies without loss of quality. The private copy exception in the digital age therefore opened the door to the possibility of large numbers of copies being made, which would prevent the creator of the work properly being able to recoup his costs and investments of originating and producing the work in the first place.

Thus, the Court has clarified the nature of the private copy exception and it cannot be considered an absolute right.  The case has been sent back to the Court of Appeal for another decision based upon the specific facts in this case, in the light of the principles as detailed above.

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