Tread warily as copyright case goes into extra time
The battle over pub football continues! Somewhat surprisingly, given the rather dismissive comments of Lord Justice Pumfrey in the first part of this appeal, the two remaining judges have decided that the European issues raised by, effectively, the
satellite suppliers, merit further consideration.
This will delay matters considerably, but perhaps not for as long as the lawyers for Ms Murphy are contending. I am sure that the Premier League will use every endeavour to expedite the hearing, but it will certainly be months before the European Court of Justice finally delivers its judgment.
Some clarification of the issues is certainly required, and the case will have wider repercussions than simply whether cut-price Premier League football is to be allowed in the UK — rather wishful thinking than reality, I think.
Copyright is a universal concept, and it is by its nature territorial: ask any book publisher about the difference between us and America in this regard. It exists throughout the creative field and is an important element of business and commerce in most areas. We even have a special appeal court set up to deal with contentious issues of patent rights, copying and passing off.
Copyright is also extremely valuable. Often, the selling price of a company in the creative industries consists to a large extent of its product rights, rather than the actual physical goods it possesses. In the case of football, it is argued that the copyright in the matches helps in no small measure to fund the football clubs themselves, and without the enormous sum of money paid by Sky and Setanta for the rights to matches, many clubs would be starved of cash. Some might say that this would help to curb the ludicrous transfer fees and players' salaries, but those in the business say that it is far more likely to mean more football clubs going to the wall and less investment in grounds and spectator services.
But I do not think that the European referral does affect the copyright position as such. It is true that in the first part of the judgment on the Murphy case, already handed down, the judge made it clear that Ms Murphy knowingly breached copyright in the football matches. He examined the implications of UK copyright laws in some detail, and the fact that the judges have sent a particular element of the case for further scrutiny will not, in my view, overturn the principle that users have to pay the right people if they want to put copyright material in the public domain.
What will be interesting is to see if anyone now prosecuted by the Premier League's enforcement team seeks to argue that the whole matter must wait until the European Court's determination. There will presumably be a district judge somewhere who will shortly be served with the papers on a case as seemingly straightforward as the Murphy one, who will have to decide if the judgment of Lord Justice Pumfrey is binding on him. That will be yet another defining moment in this long-running saga.
The satellite suppliers, however, must be extremely satisfied with the way things have gone. They now have not just one referral, but two — the supply of decoders, which was initiated by Sky, and the user of the material, which was an appeal by themselves. This all gives them extra time to sell more equipment, and I am sure that they will give the strong impression that everything is OK for licensees to use whatever they like.
But if the Premier League is to be believed, the prosecutions will not stop and individual licensees must tread extremely warily in this area.
