Member Article

A decision of the Court of Justice of the European Union (CJEU) in 2011 appeared to limit the options for large television companies seeking to prevent unlicensed viewing.  It was held in that case, involving the Football Association Premier League Ltd, that the use of foreign decoders to broadcast Sky television in public places could not be prevented because of EU competition rules.  However any comfort which this decision may have created for pub owners has been quashed by a recent Scottish decision in the Court of Session. In the recent case of British Sky Broadcasting Group plc and British Sky Broadcasting Limited ("B Sky B") v Avalon Bar Limited, B Sky B were able to rely on the protections of copyright law to obtain a court order against the owners of a pub in Glasgow.

The owners of the Glasgow pub had been showing football matches which were broadcast on a television channel owned by Sky without a valid license. Various graphics shown on the screen during the football match were considered to be artistic works for the purposes of the Copyright, Designs and Patents Act 1988. These graphics, which were considered as being the property of Sky and qualifying for copyright protection, ranged from the Sky sports logos to the red button logo shown in the top corner of the screen. 

A court order was granted to prevent further showing of Sky channels by the Glasgow pub.  The wording of the court order prohibited the pub owners "by themselves or by their servants or agents…or anyone acting on their behalf" from showing the broadcasts.  By showing another match two hours after the court order was served, the pub was held to be in breach of the order and in contempt of court.  

The European decision in 2011 did also acknowledge that the television company involved held copyright over certain works contained in the broadcast, including the opening video sequence, the premier league anthems, highlights from other matches and graphics.  However the cross border aspect in that case meant that the main issue before the European Court was the free movement of services principle under EU Law.  It was held that the proposed restriction on using foreign decoding devices could not be justified in order to protect intellectual property rights.  There was no similar international aspect in the present case and as a result the intellectual property rights held by the broadcaster prevailed. 

This case emphasises the importance of understanding and complying with the terms of a court order.  Business owners should be alert to the need, as a matter of copyright law, to ensure licenses for public places are obtained and up to date.

Please click here to view the full court of session document.