On 24 February 2012, Karen Murphy finally had her criminal conviction for using foreign decoders to show football in her Portsmouth pub quashed. This decision, and the High Court ruling on 3 February 2012 in the associated cases involving QC Leisure, AV Station and assorted landlords, mark, potentially, the penultimate lap in the long distance race the parties have been involved in with the Football Association Premier League (“FAPL”). With all the jockeying for position over the last six years, however, who has really come out on top?
As we reported in October 2011, the outcome of the reference in this case to the European Court of Justice (“ECJ”) was effectively a score draw. Those wanting to use foreign decoders successfully obtained a ruling that attempts to prevent their sale or use in different European countries would breach the Article 101 EU Treaty prohibition against anti-competitive agreements, whereas the FAPL gained confirmation that unauthorised communication of its copyright protected material to the public could be challenged, and that this included pubs showing live football to their customers. However, it was made clear that the broadcast as a whole did not benefit from copyright protection, but only certain elements such as the Premier League anthem and proprietary graphics, etc. Now the High Court has had the opportunity to take these rulings and to apply them to the specific facts in each of the cases before it.
Whilst the final outcome is undoubtedly a victory for Karen Murphy personally, the FAPL has made it clear that it doesn’t consider that this ruling changes anything regarding the ability of pubs to show live football, other than through legitimate commercial subscriptions from Sky. This is consistent also with the High Courts ruling in the QC Leisure case, which confirms that landlords were communicating FAPL’s copyright works to the public in breach of the Copyright, Designs and Patents Act 1988 (“CDPA”), albeit that the infringement is limited solely to the anthem and certain graphics.
As such, whilst the immediate response of many to Karen Murphy’s success is that this must mark a sea change in how people watch football in pubs, the actual impact of the decisions remains unclear. If FAPL is able to use this copyright angle to maintain control over how pubs show live football, some are bound to see it as an outrage and a travesty of justice. For the average pub landlord who is finding it hard to keep business buoyant in a hard economic market, the continued threat of enforcement action if he shows live football at 3pm via a foreign decoder will no doubt feel hard done by, as will the punter who simply wants nothing more than to sit at his favourite table with a pint and a salty snack and watch the match.
But are consumers really losing in this situation? These decisions confirm that whilst illegal anti-competitive behaviour which artificially forecloses the market will not be tolerated, legitimate protection of copyright will be. There may be genuine questions to be asked about the extent of copyright protected material contained in these broadcasts, and whether it is sufficient to justify injunctions being granted that prevent the games being shown on a blanket ban basis, but the right of the FAPL to at least ask the question is undeniable.
There has been speculation about how these rulings might change the future of football broadcasting in order to safeguard the interests of the rights owners and broadcasters. Ex-pats in Greece may find themselves unable to access English commentary if packages become characterised by linguistic differences, but others will be happy if the broadcasting revenues currently flowing to English football can be preserved. Indeed, if one looks at past examples of the intervention of competition law into football in relation to the sale of those broadcast rights, the question that is often asked is who really profited, consumers or the sport? There may be competition between broadcasters, but viewers wishing to watch games across the whole of a season need to subscribe to multiple broadcast channels. In that regard, this is one of the few areas where the majority of consumers would probably argue that increased competition has done them more harm than good. If pubs can access live football broadcasts at cheaper prices, but this has the knock-on effect of reducing revenue for clubs would it really be for the good of the game, or would it simply increase the current inequality between those clubs with generous benefactors, and those without? In such circumstances, spending a Saturday afternoon in the pub watching yet another one-sided match might become an unpalatable norm.
All this goes to show that, sometimes, you have to be careful what you wish for. At the same time, however, this saga has been a wake up call for the broadcast industry in general. The world has changed with the advent of new technology and the continued development of the single market, and the law is slowly but surely catching up. This makes for interesting times for everyone, and whilst some may find the path rockier than others, the outcome should be broadcast markets that are appropriate to the age of modern media. So whilst the case of Karen Murphy appears to have finally settled down, like a good pint of stout, the future of sports broadcasting may still be turbulent for the foreseeable future.
