Tuesday, 22 November 2016

Case update – FAPL v. Luxton

This case update from David Liao

Earlier this month the appeal to The Football Association Premier League Limited v Anthony William Luxton was dismissed. In the latest case against publicans who use foreign decoder cards, the Court maintained the distinction between the lawful enforcement of intellectual property rights from any alleged anti-competitive agreements between FAPL and foreign broadcasters to restrict the supply of foreign commercial cards outside the territory in which that broadcaster operates. 

In 2014, summary judgment was awarded against Mr Anthony Luxton, who used a satellite card from a Danish broadcaster to show football matches to customers who frequented his public house in Swansea. Despite Mrs Justice Rose expressing concern that the status quo of territorial protection in relation to broadcast licences appeared to be maintained notwithstanding the previous ruling of the CJEU in Premier League v. QC Leisure, she held that, as QC Leisure had effectively decided the plea in this defence, FAPL had a right to prevent the unauthorised communication of its copyright (see here for previous coverage on the High Court case). 

Court of Appeal:
While the Court did not agree that the QC Leisure case had conclusively decided this case, the decision to dismiss the appeal was based on similar reasoning. Lord Justice Floyd did not agree with Luxton that the proceedings were an illicit attempt by FAPL to prevent the use of foreign decoders cards as they were entitled to prevent a domestic card from being used for commercial purposes (nothing to show FAPL would only enforce if foreign domestic). 

In addition, it was held that use of the foreign domestic card was not a direct consequence of FAPL practices or agreements with foreign broadcasters, and at most it only provided the occasion for such use. Due to this insufficient link between Luxton’s infringement of FAPL’s copyright and the alleged anti-competitive practices the appeal was dismissed. 



Football Association Premier League Ltd v QC Leisure; Karen Murphy v Media Protection Service Ltd [C-403/08 and C-429/08]

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