Summary judgement against distributors of conditional access cards to obtain access to foreign broadcasts was refused in an English Court hearing (Premier League Ltd v QC Leisure and others [2008] EWHC 44 (Ch)) a couple of weeks ago. Last week we reported that the Premier League had successfully prosecuted a user of a card when they used it to watch Bolton Wanderer’s matches. In the QC Leisure case, Mr Justice Barling held that it was arguable that certain provisions restricting the distribution of conditional access cards – particularly to persons outside the exclusive broadcast territory, could infringe Article 81 of the Treaty of Rome.
However, it seems unlikely that any such victory will be more than pyrrhic: Coditel (Case 262/81 Coditel SA, Compagnie Générale pour la Diffusion de la Télévision v Ciné-Vog Films SA) upheld exclusive copyright licensing with territorial restrictions for broadcasts. It seems unlikely that the existence of supporting provisions, such as prohibitions on export of cards or activation of cards by users outside the exclusive territory can so undermine the territorial limits on the licence itself as to save the users outside the exclusive territory from infringement. Because of the difficulty in controlling the footprint of a satellite signal it is likely that inability to control users would seriously undermine the value of territorial restrictions.
See also IPKat's comment on this case here.
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