The grant of absolute territorial exclusivity in licences for broadcasting rights to Premier League football is coming under review following a recent ruling by the European Court of Justice (ECJ). In the UK, BSkyB holds the exclusive broadcasting rights for most Premier League games. Some publicans have been broadcasting matches accessing cheaper overseas satellite transmission of the games using foreign decoder cards. The Football Association Premier League (FAPL) has taken actions before the UK courts seeking to enforce its copyright and contractual rights to prevent this.
These cases give rise to a whole range of complex issues prompting two references to the ECJ from the English courts seeking clarification of the legal position under EU law. The ECJ ruled (in joined cases C-403/08 & C-429/08) that national legislation prohibiting foreign decoder cards restricts the freedom to provide services under EU law. Furthermore, a restriction in a licensing agreement which requires the licensee to prevent the sale or authorisation of smart cards or decoders that give access to transmission outside the exclusive territory, breaches EU competition law.
However, the ECJ also confirmed that elements of the broadcast, such as the Premier League anthem, pre-recorded film and logo, are protected by intellectual property law. These cannot be “communicated to the public” in a commercial environment without authorisation by the copyright owner. If these protected elements are sufficiently intertwined within the matches themselves (which are not copyright protected) then the owners of the copyright are entitled to enforce their rights. Consequently, the FAPL may be able to assert its copyright to restrict foreign broadcasts of matches in English pubs. That matter now rests with the English Courts, which will have to apply the ECJ’s ruling to the cases before them. Nevertheless, it is clear that the ECJ’s ruling will have widespread implications for exclusive licensing of sporting rights within the EEA.