It's only a game -- or is it competition?

The IPKat would certainly have missed this decision, had it not been for subscription-only service Lawtel, which picked it up towards the end of last week. It's Football Association Premier League Ltd and others v LCD Publishing Ltd [2007] EWHC 3171 (Ch), a Chancery Division decision by Mr Justice Warren on 8 November of last year (available here on BAILII, on whose index you can find it prophetically listed under '18 November 2008').

Right: thanks to the latest technology, photographers are now able to take portrait snaps of footie stars with no fear of 'red eye' ...

This was an application by the FA to strike out part of LCD's defence that raised issues of restraint of trade and competition, in response to the FA's claim which alleged various economic torts. The FA let photographers and photographic agencies visit football stadiums under a licence that required them to abide by its conditions. One such condition was that they would not distribute photographs taken by them at such clubs for use in any magazine that was devoted solely to a single club or player. LCD published certain magazines that were devoted solely to a particular football club or football player. The FA claimed that LCD's magazines involved the unauthorised use of photographs taken by authorised photographers at stadiums of football clubs under its control, which constituted an infringement of copyright and trade mark rights, as well as an inducement to photographers to breach the licence agreements. According to the FA, LCD had failed fully and properly to plead its competition defence, which should therefore be struck out. LCD disagreed, arguing that the FA's particulars of claim, as served, were defective, contradictory and so obscure that further particulars were required before LCD could fully plead its competition law-based defence.

Warren J dismissed the FA's application to strike out. He accepted that the FA's particulars of claim were not defective, contradictory and obscure. He also considered that there was no further information that LCD needed before it could give particulars of its competition defence in relation to the FA's allegations of inducing a breach of licence. So far, so good. But this judgment was a game of two halves. The learned judge concluded that it was not in the interests of justice to strike out LCD's competition defence at this very early stage: it was appropriate that LCD should be given the opportunity to particularise its competition defence. Having said that, it was also appropriate to make an 'unless order', requiring LCD to provide particulars of its competition defence.

The IPKat is glad that the competition defences will be given an airing. He remembers a time when football in the UK was only a game and everyone felt they had a share in it. The game has become so packaged, marketed and proprietised that many people feel increasingly remote from it. Merpel wonders whether there isn't also a freedom of expression issue here.

FA here
Sweet FA here

A more recent decision, this time not available yet on BAILII but picked up by LexisNexis Butterworths, is Football Association Premier League Ltd v QC Leisure and others, [2008] EWHC 44 (Ch), a Chancery Division for England and Wales ruling of Mr Justice Barling.

At the instigation of the FA, each Premier League football match was filmed and modified. That process created 'the World Feed' in which the FA owned the copyright. The FA licensed foreign broadcasters to broadcast the 'World Feed' supplied from the United Kingdom, these broadcasts being made by encrypted signals via satellite.

Left: competition experts clash over the position to take regarding the broadcasting of big matches

Each broadcaster supplied decoder cards to its paying customers in its own territory so as to enable its customers to receive the broadcasts. The FA's licences required foreign broadcasters to undertake to procure that no device was knowingly authorised or enabled by or with their authority or that of their sub-licensees, distributors, agents or employees so as to permit anyone to view in an intelligible form any such transmission outside their particular licensed territory. In other words, broadcasters were prohibited from supplying non-UK cards for use in the UK and none of their customers were authorised to review or receive broadcasts from within the UK.

QC imported and supplied equipment to bars and public houses in the UK. According to the FA, QC had supplied British pubs with non-UK decoder cards, sourced through subterfuge from Greece and elsewhere, which (in the firt two actions) FA said they were not entitled to do. In a third action the FA alleged that the defendant, a pub-owner, had, with the knowledge and authorisation of QC, been using non-UK decoder cards in order to broadcast live Premier League football matches, damaging sales of decoder cards authorised for UK reception by the FA's licensees.

The FA issued proceedings alleging that the actions of QC and the pub-owner breached the anti-circumvention provisions of sections of 298 and 299 of the Copyright Designs and Patents Act 1988. The FA also alleged that the defendants' actions authorised and procured others to copy, without permission, the copyright works comprised in the matches. The defendants did not contest the facts as alleged, but raised a Euro-defence that the prohibition contained within the licence agreements, on which the FA relied, was based on or caused by agreements that prevented, restricted or distorted competition within the common market, contrary to Article 81 of the EC Treaty.

In these proceedings the FA sought summary judgment on the defendants' competition defence on the basis that it had no real prospect of success in the light of the European Court of Justice's ruling in Case 262/81 Coditel SA, Compagnie Générale pour la Diffusion de la Télévision v Ciné-Vog Films SA. Said the FA, its licence agreements with foreign broadcasters were akin to the licence in issue in that case, in which no breach of Article 81's predecessor was found to exist.
Barling J dismissed the FA's application to for summary judgment. In his view, the scope of the judgment in Coditel was narrow, indicating that the mere fact of the grant to a licensee of exclusive rights in a particular territory was not anticompetitive -- but nothing more than that. The licence in this case did not consist merely of a grant of exclusive right. Instead, it appeared to impose an obligation on each foreign broadcaster to undertake to 'procure' that non-UK decoder cards were not authorised or enabled by the licensee or any sub-licensee or distributor, agent or employee of such persons, so as to enable anyone to view the foreign broadcaster's transmission outside the latter's territory. This being so, the decision in Coditel was not determinative of the likelihood of success of the Article 81 defence in this case and the FA failed to demonstrate that there was no real prospect of success at trial.

The IPKat is pleased that this dispute will go to trial. At stake will be the issue of whether football broadcasting is a special case, given the international nature of its financial structure and the very heavy interdependence of the sport itself and the broadcasting system on which it feeds, or whether the principles that have brought to bear in other commercial and industrial sectors will be applied in similar fashion here. Merpel wonders whether any inference can be drawn from the fact that the Commission so far given a bill of health to other allegedly anticompetitive European and national football broadcasting arrangements (see here, here and here).