Co-authored by Wil Kim
Over the summer, the Premier League (PL) broke the £9 billion barrier for the sale of the next cycle (2019-2022) of broadcasting rights, with £5 billion and $4.3 billion of those rights being sold to domestic and international broadcasters, respectively. Those figures are set to trickle down to provide at least £90 million a season in broadcasting and prize-money revenue for each PL club, substantiating the importance of protecting and maintaining such income streams for the PL. We set out below a summary of legal developments and enforcement trends affecting the PL’s fight against piracy.
In 2011, the European Court of Justice (ECJ) ruled in the joint cases of Football Association Premier League Ltd and others v QC Leisure and others1 and Murphy v Media Protection Services Ltd2 that the PL cannot claim copyright in football matches, as they cannot be deemed to be an author’s own intellectual creation and therefore cannot be regarded as ‘works’ (according to the meaning contained in the EU Directive on copyright (the Copyright Directive)). However, it did allow the PL to assert copyright in the broadcast of matches, including the opening video sequences, the use of logos and badges, the PL anthem, pre-recorded highlight reels of PL matches and other various graphics (the Copyright Materials). Furthermore, the ECJ found that transmission of the broadcasts containing those Copyright Materials from European broadcasters in UK public spaces constituted a “communication to the public” (as of Article 3(1) of the Copyright Directive), amounting to copyright infringement.
Applying the ECJ’s judgment, the UK courts subsequently held that, providing the PL included Copyright Materials in its broadcasts, it could claim copyright infringement against unapproved broadcasts of PL matches to the public. This proved to be a major springboard for the PL’s domestic fight against piracy.
Technological development has given rise to a major headache for the PL: the illegal live streaming of football matches. Streaming websites such as Ronaldo7.net and Reddit Soccer Streams have resulted in the PL losing up to £1 million in sponsorship value per match. In 2017, however, the PL celebrated a landmark injunction (the 2017 Injunction) against some of the UK’s leading internet service providers (TalkTalk, Sky Broadband, EE, BT and Virgin Media). Whereas, prior to the 2017 Injunction, illegal streamers could circumvent individual blocking orders by setting up new URLs, the PL is now able to force internet service providers to impede public access to servers of illegal streams and obtain blocking orders against their IP addresses.
The lasting impact of the 2017 Injunction is evident in the “IP Crime and Enforcement Report 2018-19” (IP Report), published by the UK Intellectual Property Office in September 2019, which contains the following figures in regards to the 2018/19 PL season:
- 210,000 live streams of unauthorised broadcasts of PL matches were removed or blocked;
- Reddit Soccer Streams, which had over 420,000 subscribers, was closed down; and
- all PL content from Ronaldo7.net, which attracts around 8,000,000 global visits a month, was removed.
Another major initiative in the PL’s domestic clampdown on piracy has been its investigations against individuals suspected of providing illegal streaming content. These investigations (led by the Federation Against Copyright Theft (FACT), the UK’s leading trade organisation which helps to protect its members’ IP rights in broadcasting, and assisted by the Metropolitan Police), enabled the PL to successfully complete over 6,000 investigative visits to commercial premises throughout the UK in the 2018/19 season.
The most significant impact of FACT-led investigations was the sentencing in March 2019 of three individuals for copyright breach and conspiracy to defraud rights. Stephen King, Paul Rolston and Daniel Malone were given sentences of between three and eight years each for creating illegal streams via third parties and selling them for over a decade to more than 1,000 pubs under the names Dreambox, Dreambox TV limited and Digital Switchover Limited, earning over £5 million in the process.
In addition to the progressive steps made on the litigation front, the PL has also made notable efforts to raise awareness of such issues to PL fans and audiences of illegal streams. The IP Report produced findings that the PL, among other parties, helped to fund the independent charity, Crimestoppers, in deterring up to 41% of infringers of and two-thirds of non-infringers of piracy in reassessing their behaviours, by communicating infringement risks such as hacking, malware and viruses. Although less tangible and more difficult, it will be crucial for the PL to continue engaging and increasing the public’s awareness as to the infringement risks as part of the piracy battle.
Domestically, the PL has made marked progress in its fight against piracy, but there remains work to be done. The EU Member States approved a revised Copyright Directive in April 2019; however, broadcasting rights-holders such as the PL considered that it failed to address sufficiently the core of the piracy issue, merely cementing their rights to apply for injunctions against intermediaries whose services infringe copyright laws when utilised by third parties. Due to the limited solutions available to tackle the multi-layered piracy battle and broadcasting infringement, it seems the PL’s struggles are set to continue for the foreseeable future.