Live broadcast licence
Lack of live broadcast licence for football match results in £65,000 interim payment.
In the High Court before Mr R. Sperman QC between The Football Association Premier League Limited and (1) Anthony Berry (2) Barclays Bank Plc
27 March 2014
Miss Lindsay Lane (instructed by DLA Piper LLP) for the Claimant
Miss Sarah Ford (instructed by Molesworth Bright-Clegg Solicitors) for the First Defendant
The matter was originally listed as an application for summary judgment, but the defendant accepted that the claimant is entitled to summary judgment the issue was one of an interim payment.
Several interesting matters arose from the Judgment:
The first defendant argued that the claimant can only expect to recover very small damages for admitted infringements of copyright that have occurred in infringements of its logos and graphic works in the broadcast material.
The starting point on an inquiry as to damages would begin by assessing the amounts which would be agreed as between a willing licensor and a willing licensee.
£25,000.00 is a reasonable amount to claim since the broadcast licence required would cover two seasons, the infringements started on 15th September 2012 and ended 04th December 2013.
There is no requirement for the claimant to particularise its damages prior to the inquiry as to damages.
Proceedings involved competition law and the free movement of goods and copyright issues.
Using counsel specialising in the two different areas and fee earners specialising in the two different areas are justified even if it exacerbates costs.
If a defendant wants the matter tried in the Intellectual Property Enterprise Court it should raise the point early in the proceedings.
Defendants should admit ownership and subsistence of copyright and the infringing acts much earlier to avoid exacerbating costs.
A substantial body of witness statements from people dealing with the creation of the works, proving ownership and evidence to prove use of the works will exacerbate costs.
Conceding summary judgment late in the day exacerbates costs.
Rights to logos and graphic works in the broadcast material are valuable.
The defendants chose to use, without having first sought permission broadcasts incorporating logos and graphic works.
It is entirely reasonable to assess the licence fee at £1,200 per month over two years.
On additional damages on an account of profits the test would be between a pub that showed football matches and one that did not. The value of the claim will not be measured by a few hundred pounds.
More significantly the wider issue is between publicans and the like in general and copyright owners such as BSkyB as to whether the claims of the copyright owners are tenable in light of European and competition law considerations.
The total claim according to the Claimant’s skeleton argument was £148,000.70 the claimant was seeking 50% of this costs by way of an interim payment. The claimant was awarded £65,00 as an interim payment to be paid within 28 days.