Author: Enrico Bonadio
City University London
Football Association Premier League v QC Leisure YouTube and Karen Murphy v Media Protection Services Ltd (Joined Cases C-403/08 and C-429/08), Court of Justice of the European Union, Opinion of Advocate General Professor Juliane Kokott, 3 February 2011
Journal of Intellectual Property Law & Practice (2011), doi: 10.1093/jiplp/jpr032, first published online 26 March 2011
Advocate General Professor Juliane Kokott gave her interpretation of ‘communication to the public’ under Article 3(1) of the Info Society Directive and concluded that the showing of live Premier League matches in pubs does not amount to such communication.
Other relevant provisions quoted and commented by the Advocate General include Recital 23 of the Info Society Directive and Article 11bis(1) of the Berne Convention. Recital 23 states that communication to the public must be interpreted broadly and should cover all communication to the public not present at the place where the communication originates. Article 11-bis(1) of the Berne Convention provides that authors are given the exclusive right to authorise ‘(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sound or images, the broadcast of the work’.
A first set of proceedings was instituted in the UK by inter alia the Football Association Premier League Ltd (FAPL), which organizes the filming of Premier League matches and the licensing of the rights to broadcast them. These proceedings refer to the use of foreign decoder cards in the UK to access foreign satellite transmissions of live Premier Leagues football matches. FAPL is convinced that this activity infringes its copyrights on various works embodied in the matches. Two actions had been instituted against suppliers of foreign decoder cards to bars and pubs and another action had been brought against licensees and publicans who showed live matches broadcast on the channels of a foreign broadcaster. A referral was then made to the ECJ (Football Association Premier League v QC Leisure YouTube, Case C-403/08).
A second proceeding was instituted by Media Protection Services Ltd against a publican, Ms Karen Murphy, who showed Premier League football matches in her pub by using a Greek decoder card. The latter was fined on the ground that the above decoder card was an illicit access device. Ms Murphy appealed to the High Court, which then referred the case to the ECJ (Karen Murphy v Media Protection Services Ltd, Case C-429/08).
The ECJ deemed it appropriate to hear the cases jointly.
One question posed to the ECJ (question 6 in Case C-403/08) demands clarification as to whether the showing of live Premier League matches in pubs violates the exclusive right to communicate to the public copyright works under Article 3(1) of the Info Society Directive. The Advocate General considered it necessary to verify whether this activity effectively amounts to communication to the public under Article 3(1) of the Info Society Directive. She found it does not. It would follow that no infringement of communication to the public right can be claimed here under the Info Society Directive, as such communication does not occur at all.
Professor Kokott first noted that the presentation of radio or TV programmes in places where people gather (such as bars, restaurants, hotels, cafes, trains, etc.) fall within Article 11bis(1)(iii) of the Berne Convention which—as shown above—expressly covers the public communication by loudspeaker or any other analogous instrument transmitting the broadcast of the work. She makes reference to the 1978 WIPO Guide to the Berne Convention which clarifies that this provision is intended to cover the above activities (paragraph 122 of the opinion).
The Advocate General considered that this sub-provision of the Berne Convention has not been transposed into EU law, and specifically into the Info Society Directive. This is buttressed, the argument goes, by the fact that Article 8 of the WIPO Copyright Treaty does not mention communication to the public by means of public presentation. Article 3(1) was inserted into the Info Society Directive with the purpose of implementing Article 8 of the WIPO Copyright Treaty (the two provisions have almost identical wording). Further, Recital 23 of the Info Society Directive, Professor Kokott added, confirms this finding, as such provision does not expressly mention the communication to the public by means of public presentation: she added that this issue was discussed within the Council and in particular that the Council Presidency stressed that the acts other than those mentioned in Recital 23, such as making a computer with internet connection available in an Internet café or library, would not be covered by the Info Society Directive (see Council document 5168/00 of 10 January 2000, p. 4, paragraph 9, quoted in the opinion at paragraph 135, note 42).
Professor Kokott also held that the showing of TV programmes in a pub does not fall within the other category of communication to the public, i.e. communication to the public not present at the place where the communication originates (this act is expressly covered by the Info Society Directive: see again Recital 23). In her eyes, where pub landlords show TV programmes to their customers, the relevant public is present at the place where the communication originates: the communication originates on the TV screen (paragraph 144 of the opinion).
Thus, according to the Advocate General, showing TV programmes in a pub does not fall within any communication to the public envisaged by the Info Society Directive: as indicated above, it follows that no infringement of the ‘communication to the public’ right can be claimed here.
These findings of the Advocate General seem to be at odds with the previous case law of the ECJ. In a similar case (SGAE v Rafael Hoteles, Case C-306/05) the ECJ supported a broad interpretation of the restricted act in question and held that the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, is to be considered as communication to the public under Article 3 of the Info Society Directive.
Further, Recital 23 of the Info Society Directive clearly states that ‘communication to the public’ must be interpreted broadly and, as emphasised in the opinion (paragraph 129), the explanatory memorandum on the Commission's proposal for a directive clarifies that Article 3(1) of the Info Society Directive is intended to cover all forms of public communication (COM 97 628, Article 3, paragraph 1, p. 25 of the English version). Therefore, should the ECJ accept the interpretation given by the Advocate General—the author believes—the Court should better distinguish this case from SGAE v Rafael Hoteles and give more detailed explanations on the relevant technical issues.
The ECJ should also explain why the fact that the football matches in the pub are showed free of charge supports the finding that the act in question does not constitute communication to the public, as suggested by Professor Kokott. This author believes that such fact should not affect the decision whether the acts in question amount to communication to the public. Also the guests of a hotel watch TV programmes in their room free of charge: and this did not impede the ECJ from considering the distribution of a signal by means of hotel TV sets as communication to the public (SGAE v Rafael Hoteles).
The practical result of such findings is clear. Copyright owners should not be entitled to enforce their communication to the public rights under the Info Society Directive against publicans, bar owners and the like who show TV copyright programmes to their customers. Yet, even if the ECJ confirms the findings of the Advocate General, this would not have a particular impact in those EU Member States which have implemented or will implement Article 11bis(1)(iii) of the Berne Convention: this provision grants copyright owners the right to prohibit the public communication of radio or TV programmes in places where people gather including bars, restaurants, hotels, cafes, trains, etc. Thus in those Member States copyright owners will still be able to enforce their exclusive rights against that identified category of infringers.