Injunctions against ISPs Part VI: The Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others

Early international between England and Scotland   Source Wikipedia




















In The Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others [2013] EWHC 2058 (Ch) (16 July 2013) Mr. Justice Arnold granted an injunction under s.97A of the Copyright, Designs and Patents Act 1988 against the top 6 internet service providers in the UK to block access to the First Row Sports website. As the judge had already made similar orders against the same defendants in Newzbin2 (see "Injunctions against ISPs" 6 Nov 26), Dramatico ("Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others") and EMI ("Injunctions against ISPs Part V: EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others" 5 March 2013) they did not defend the application but instead agreed the terms of the order with the Premier League. However, as the judge acknowledged at paragraph [7] of his judgment, that did not absolve the Court of the responsibility of determining whether the orders sought were justified.

The Copyright Works
The Football Association Premier League is the governing body of the competition between the top English and Welsh football clubs.It owns the copyright in recordings of the football matches played in the competition together with the copyright in various other artistic works such as the Premier League and Barclays logos. These recordings form part of live transmission of the matches to viewers outside the UK, Viewers in this country cannot watch them live because TV broadcasting is banned between 14:45 and 17:15 on Saturdays in order to encourage British fans to go to the grounds and actually watch some football.

First Row Sports
First Row indexes transmissions of the matches that somehow find their way in digital form onto the internet and makes them available to the public even at the times when the fans should be in the stadiums, The website  makes its money from advertising. Some of the recipients are private householders but others are pubs which show Premier League matches while the teams are actually on the field. According to the League's expert First Row makes between £5,360,680 and £9,505,564 from this activity. Shocking!

The Statutory Requirements
In order to grant an injunction, the judge had to tick the following boxes:
  • Were the defendants Information Society Service Providers?. Tick
  • Do the operators and users of First Row infringe copyright?  The judge held that they did either by communicating the works to the public or acting as joint tortfeasors with their customers.
  • Did the operators and users use the defendants' services? Well of course. How else could anyone access the site?
  • Did the defendants have actual knowledge? Well they did after they got the claimants' letter before claim.
  • Are the orders proportionate? Tick.
Having satisfied all the requirements his lordship made the order.

Sports
As I said yesterday in "We can now field a cricket team" 4 to 5 IP 19 July 2013, we are very hot on sport in these chambers. We actually have a footballer in our IP, tech and  media law group.  None other than Mr Samuel Okoronkwo who seems to have lots of accomplishments and experience. If you want to talk to Samuel, Robert Griffiths QC or indeed any of my colleagues about this case, copyright in general or even sport, call Steve on 020 7404 5252 or fill in our contact form. Happy days!

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