The European Court of Justice (ECJ) has given its eagerly anticipated judgment in the “pubs case” concerning an attempt by the FA Premier League to prosecute a Portsmouth landlady, Karen Murphy, for showing live coverage of Premier League matches by a Greek broadcaster.
Agreeing with an earlier opinion issued by an expert adviser to the Court, ECJ Advocate-General Juliane Kokott, the ECJ found that the way in which the Premier League sells its rights, on an exclusive territory-by-territory basis, contravenes EU law. Principles of free movement of goods and services dictate that measures designed specifically to prevent the cross-border trade of equipment used to view broadcasts (in this case, viewing cards enabling access to the Greek broadcasts) are unlawful.
At the same time, however, the Court has held that EU law does not prevent the Premier League from being able to claim copyright in certain aspects of the broadcasts. It also held that their transmission in a pub does constitute a “communication to the public”, which requires the authorisation of the rights holder. In particular, it mentioned certain items, including the Premier League anthem, pre-recorded films of highlights of Premier League games and Premier League graphics, as meriting protection, albeit the match broadcast itself would not be so covered.
The Premier League now faces some difficult decisions, particularly with the next tender of its rights, which is imminent. It may feel that the ECJ’s judgment gives it sufficient certainty in terms of its copyright position to continue to exploit its rights in the same way going forward. However, it is likely it will also need to consider other options, including the sale of rights on a pan-European basis or even only certain, more lucrative European markets, as a way of circumventing the issues it has encountered in prosecuting landlords such as Miss Murphy.
The decision also has far-reaching implications for how other rights holders across sports, music, books and film exploit their rights. Anyone who previously used a territory-by-territory model will need to consider whether they can continue to do so without finding the same issues as have been encountered by the Premier League.