Copyright law: public houses and private consumers

The Court’s ruling makes an important distinction between the private consumer and the proprietors of the restaurants and public houses in question in the litigation. It is a distinction which flows from the Copyright Directive and the Related

  • 154 Karen Murphy (n 125) paras 134—46. 155 See Ch 7.3.
  • 156 Karen Murphy (n 125) para 139, the Court comments ‘see, by analogy, in the field of medicinal products, Joined Cases C-468/06 to C-478/06 Sot. Lelos kai Sia and Others [2008] ECR I-7139, paragraph 65, and GlaxoSmithKline Services and Others v Commission and Others, paragraphs 59 and 61’. So this is not a sport-specific examination.

Rights Directive.^7 It was identified by the Court after an intricate analysis of the relevant provisions.^8 It found that the Copyright Directive:

... must be interpreted as meaning that the reproduction right extends to transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors’ own intellectual creation, and the unit composed of the fragments reproduced simultaneously must be examined in order to determine whether it contains such elements.^9

Only the technologically savvy will grasp what this means. In fact, it refers to the decoration of a television broadcast with matters such as the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches, or various graphics which are protectable under copyright.[1] [2] [3] [4] The point, then, is that, as the Court had already found, sporting events cannot be protected under copyright but they may carry an original character which can transform them into subject matter that is worthy of protection should national law so choose, but associated features of the broadcast may be covered by copyright, as foreseen by the Copyright Directive. The ruling therefore induces broadcasters to lard their transmissions with further protectable adornments, such as logos. Then, the Court found that the Copyright Directive allows a right holder to receive reward, inter alia, on the occasion of ‘communication to the public’. The Court chose to interpret this broadly.161 It concluded that it covered transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house which was, as the Court chose to note, pursued with profit-making in view.162 This may be restrained as an infringement of copyright in the absence of authorization and, crucially, payment. But this clearly does not cover the private consumer in his or her own home, who may watch matches with the imported decoding device without any fear of being held to account for breach of copyright. EU law protects him or her, although this does not preclude actions on the contracts for breach elsewhere in the chain of supply.

  • [1] Directive 2001/29/EC (n 128); Directive 2006/ 115/EC of 12 December 2006 on rental rightand lending right and on certain rights related to copyright in the field of intellectual property [2006]OJ L376/28.
  • [2] Karen Murphy (n 125) para 147ff. 159 ibid para 159.
  • [3] 160 ibid paras 149, 152. 161 ibid para 186.
  • [4] 162 This is one of the few points on which the Court departed from AG Kokott, who did not findthe matter to constitute a communication to the public within the meaning of the Directive 2001/29/EC on copyright.
 
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