In a case which may change how the Premier League chooses to structure broadcasting rights packages, on 4 October, the European Court of Justice (ECJ) ruled in favour of a pub landlady from Portsmouth, who was using a Greek decoder to screen Premier League football matches in her pub.
In January 2007, Karen Murphy was convicted for dishonestly receiving BSkyB’s football coverage intending to avoid proper payment. She appealed against her conviction and a number of points were referred to the ECJ for guidance.
Ms Murphy’s argument was that she was entitled to use the Greek decoder under the EU’s single market principles which call for the free movement of goods and services throughout the EU. The Football Association Premier League (FAPL), which owns and markets the broadcasting rights to Premier League matches, argued that Ms Murphy had breached its copyright by screening the matches in her pub.
In February, an Advocate General from the ECJ gave her opinion that the infringement of the single market principle outweighed the protection of intellectual property rights achieved by exclusive agreements along national lines.
Adopting the sentiment of this opinion, the ECJ ruled: "National legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums."
In addition, the ECJ made the following comments:
- Performances of athletes are different from those of actors and musicians and, as a result, FAPL does not own copyright of whole matches but only in certain elements such as the Premier League anthem, the opening video sequence and FAPL produced clips showing highlights of other Premier League matches;
- Even if FAPL had copyright of the whole matches, outlawing the use of foreign decoders and the resulting arbitrary price differences between countries within the single market would be disproportionate to the aim of protecting these rights;
- Granting exclusivity as part of a contract is not always anti-competitive, but using a system of exclusive licences to prohibit the supply of decoders and other equipment outside a particular country within the single market is unlawful as this eliminates all competition between broadcasters and creates a separate market within each country; and
- Foreign decoder boxes are not “illicit devices” under EU law even where a false name and address have been used to obtain them as long as the device itself has not been tampered with. Their possession and use is therefore not unlawful as such.
While the case will return to the High Court for a final ruling and is likely to be appealed after this, the ECJ’s decision will no doubt prompt the various parties to look at their options.
From the current perspective, it seems unlikely that this judgment will revolutionise the way publicans procure their football screenings. Whilst it opens the door for them to obtain foreign decoder boxes, screening the matches to an audience in a pub is still likely to infringe FAPL’s copyright in relation to various elements of the broadcast.
While publicans might attempt to edit these out, FAPL could include further copyrighted elements into the match coverage to counteract such attempts.
Football clubs will be monitoring the situation closely as broadcasting rights are an important income stream to any club which plays in a televised league. Other industries which currently protect their intellectual property rights by licences granting exclusive use within certain EU countries will also have a keen interest.