James Mellor QC and Charlotte May acted for the claimant (FAPL) and Martin Howe QC for the defendants in this hearing at which Kitchin LJ (sitting at first instance) gave final judgment in the action following the answers given by the ECJ in its judgment (Joined Cases C-403/08 & C-429/08) in response to the questions which had been referred to it by Kitchin J after the trial at [2008] EWHC 1411 (Ch).
Kitchin LJ held:
(1) Applying the EU law doctrine of so-called “conforming interpretation”, that s. 20 of the UK Copyright Designs and Patents Act 1988 should be interpreted in the light of the ECJ’s interpretation of “communication to the public” in Article 3(1) of Directive 2001/29 so as to cover the act of showing artistic works and playing musical works included in a broadcast to an audience in a pub; but that section 72 of the Act (which provided a defence to infringement of film works included in a broadcast when the audience was not charged for admission) was so clear that it could not be “interpreted” so as to negate the defence which Parliament had intended to provide. (On this latter point, FAPL subsequently appealed by their appeal was dismissed by the Court of Appeal at [2012] EWCA Civ 1708).
(2) The the findings in his judgment given after the trial that there was no evidence that the publican defendants had played the FAPL Anthem out load, and that the defendants who were trading in decoder cards had authorised the acts performed by publicans using those cards, should no be re-opened.
(3) That, following the ECJ’s judgment, a formal declaration should be made that clauses in FAPL’s licence agreement which prohibited its licensees from supplying decoder cards to customers outside their territories were void as contrary to Article 81 EC (now Article 101 TFEU).
It was also accepted by FAPL (and therefore not argued before Kitchin LJ) that their claims under s. 298 of the Act in respect of importation and sale of satellite decoder cards in the UK must be dismissed in the light of the ECJ’s interpretation of the Conditional Access Directive.
Reported at [2012] FSR 12.