January 15, 2018
The claimant, UEFA, established that it owned the copyright in television broadcasts of all matches in UEFA competitions, and in films (particularly replays), artistic works and musical works incorporated within those broadcasts.
The defendants were the six main retail internet service providers in the UK. The first defendant, BT, has since 2013, been the exclusive licensee of the rights to broadcast and transmit the UEFA competitions in the UK.
UEFA sought an injunction against the defendants pursuant to s 97A of the Copyright, Designs and Patents Act 1988 requiring the defendants to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of UEFA competition matches to UK consumers.
Mr Justice Arnold noted that the order sought by UEFA was very similar to the order that he made in Football Association Premier League Ltd v British Telecommunications plc  EWHC 1877 (Ch), following the earlier order in Football Association Premier League Ltd v British Telecommunications plc  EWHC 480 (Ch).
Arnold J accepted UEFA’s contention that the threshold jurisdictional requirements for making an order under s 97A were satisfied for essentially the same reasons as he gave in the first FAPL v BT case. He added, however, that the finding he had made in the first FAPL v BT case, namely that the operators of the Target Servers were carrying out an act of communication, was now supported by the decision of the CJEU in Case C-610/15 Stichting BREIN v Ziggo BV EU:C:2017:456. Further, Arnold J said, the finding he had made that streaming was a different technical means to cable or satellite broadcasts which requires a separate authorisation from the rights holder, was now supported by the decision of the CJEU in Case C-265/16 VCAST Ltd v RTI SpA EU:C:2017:913.
Arnold J also accepted UEFA’s argument that the order it sought was appropriate and proportionate for essentially the same reasons as Arnold J had given in the first FAPL v BT case.
Arnold J added, however that the need for such orders had been emphasised by further evidence that had since become available as to the scale of the problem of illicit streaming. The UK Intellectual Property Office has been quoted as saying that it believed that, at a conservative estimate, a million set-top boxes with software added to them to facilitate illegal streaming had been sold in the UK in the last couple of years.
In addition, Arnold J noted that the evidence filed by FAPL in the second case it brought demonstrated that the order he had made in the first FAPL v BT case was very effective in achieving the blocking of access to the Target Servers during Premier League matches and that no evidence had been found of overblocking. The evidence filed in support of this application was that the order made in the second FAPL v BT case had also been very effective and there was still no evidence of overblocking.
Finally, Arnold J noted that the order sought by UEFA contained the same three criteria for selection of Target Servers as the orders in the FAPL v BT cases, but also included a fourth criterion which provided an additional safeguard against overblocking.
Accordingly, Arnold J was satisfied that the court had jurisdiction to make the order sought and that it was appropriate to do so. (Union Des Associations Européennes De Football v British Telecommunications Plc  EWHC 3414 (Ch) (21 December 2017) — to read the judgment in full, click here).