The Court of Justice of the European Union (CJEU) has ruled in Football Association Premier League Ltd v QC Leisure C- 403/08 and Karen Murphy v Media Protection Services Ltd C- 429/08 (4 October 2011) that a system of licences for the broadcasting of sporting events which grants licensees territorial exclusivity on a Member State basis, and which prohibits television viewers from watching the broadcasts in one Member State using a decoder licensed for use in another, is contrary to EU law.
These combined proceedings concerned references from the High Court of England and Wales in relation to claims by the Football Association Premier League (FAPL) against a number of pubs that were using Greek decoder cards to screen Premier League matches, and their suppliers.
Premier League matches are broadcast in various Member States under a system of licences that grant particular FAPL broadcasters, selected under an open, competitive tender, territorial exclusivity on a Member State basis. Such licence agreements require the selected broadcaster to protect its exclusivity, and prevent the public from outside the Member State from receiving its broadcasts, by encrypting its satellite signal before sending this encrypted signal to its subscribers within the territory. The disputes that resulted in these cases were the result of attempts to circumvent the exclusivity of broadcasting rights.
The CJEU found that national legislation that prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified. Such legislation is unjustifiable on the grounds of protecting intellectual property rights, as the FAPL cannot claim copyright in the matches broadcast as sporting events cannot be considered to be an author’s own intellectual creation and, therefore, to be “works” for the purposes of copyright law in the European Union. Even if national law were to confer comparable protection upon sporting events—this in principle could be allowable under EU law— a prohibition on using decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned. The restrictions also cannot be justified on the grounds of encouraging the public to attend football matches.
The Court also found that a system of exclusive licences is contrary to EU competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.
While the FAPL could not claim copyright in the matches themselves, the opening video sequence, musical themes, prerecorded films showing highlights of recent Premier League matches and various graphics that were added to the feed supplied to foreign broadcasters were protected by copyright.
The screening in a pub of broadcasts containing such protected works did constitute a “communication to the public” within the meaning of the Copyright Directive, for which the rights holder’s permission is necessary. This is because, when a pub transmits those works to customers on the premises, the works are transmitted to an additional public that was not considered by the authors when they authorised the broadcasting of their works.