As a landlord, am I allowed to show Premier League matches live from a foreign channel?

Matches scheduled to play between 3pm and 5pm on a Saturday

Premier League and Football League matches are not allowed to be shown on television if they are scheduled to be played between 3pm and 5pm on a Saturday afternoon as these fall within the Football Association’s ‘Closed Period’, under UEFA Article 48.

This aim of this rule is to encourage people to:

  1. attend the actual football match;
  2. play and be involved in grass roots football.

Legal football broadcast

Pubs, clubs and other commercial premises in the UK can only legally broadcast Premier League matches through a commercial subscription to one or both of the Premier League’s current authorised UK broadcasters, Sky and BT.

The Premier League – through Football Association Premier League Ltd (FAPL) which runs the English Premier League – sells the rights to broadcast live Premier League matches to Sky and BT. Viewers in the UK are then charged to subscribe to these services. If a pub or other licensed premises wishes to subscribe to this service, they have to pay a significantly higher amount than that paid by individual households.

How do some pubs get around this?

Live audiovisual broadcast rights for all 380 Premier League matches per season are also awarded by FAPL to a number of international rights holders, who can then air the matches live in their allotted territory. Subscription prices for customers vary between EU member states, making certain foreign broadcast subscriptions more attractive.

Certain companies sell equipment to UK pubs which allows them to watch the foreign feeds of UK matches without having to pay the subscription to the UK licensees of FA Premier League matches. This equipment is in the form of decoder cards which enables the encrypted feed sent to the foreign stations to be decoded and shown in the UK.

This in turn enables pubs to show matches without subscribing to either Sky or BT. In certain cases, pubs which do subscribe to these services also have decoder cards enabling them to show matches at 3pm on a Saturday, breaching the rule mentioned above.

Unauthorised decoder equipment

Under the Copyright, Designs and Patents Act 1998, it is a criminal offence for a person to make, import, distribute, sell or let for hire or offer or expose for sale or hire any unauthorised decoder or have one in their possession for commercial purposes.

‘Unauthorised’ means that the decoder is designed or adapted to enable an encrypted transmission, or any service of which it forms part, to be accessed in an intelligible form without payment of the fee which the person making the transmission, or on whose behalf it is made, charges for accessing the transmission or service.

Often however, problems arise when the equipment used has been purchased legitimately in another EU member state and then imported into that EU member state legitimately. The term illicit device contained in the Copyright, Designs and Patents Act is argued to be limited to pirate or counterfeit decoders and therefore does not include decoders procured in this manner. Rights holders, therefore, have to resort to an action for breach of copyright.

Breach of copyright

In FAPL v Luxton (2014), Mr Luxton, a Swansea publican, had purchased a decoder card licensed for domestic premises in Denmark and used it to screen Premier League games in his pub.

Mr Luxton had argued that the FAPL’s true aim in bringing the proceedings was to prevent the use of foreign decoder cards in breach of the free movement principles enshrined in Article 101 of the Treaty on the Functioning of the European Union.

This, he argued, was in breach of the ruling in the Murphy and QC Leisure cases – copyright claims brought by FAPL against publicans and broadcasters who were using foreign decoder cards with cheaper subscriptions than the UK licensees. Following a preliminary reference to the European Court of Justice, the High Court found that FAPL’s licensing agreements did breach Article 101, but that the FAPL had the right to enforce its copyright in relation to elements of the broadcasts of its matches (eg, its logos, anthem, graphics, etc).

The Court of Appeal in Luxton declined to find that FAPL’s intellectual property right had become unenforceable because the motive behind its enforcement is in breach of free movement principles. It ruled that unauthorised use of a decoder card, licensed for domestic premises only, amounted to copyright infringement under the Copyright, Designs and Patents Act 1998.