The preliminary ruling given by the European Court of Justice ("ECJ") earlier this month in relation to broadcasting rights has enabled pub landlady Karen Murphy to move one step further in her battle against the Premier League. The ruling concerned two cases referred by the UK High Court in order to confirm the correct interpretation of European law. The questions referred mainly relate to the legality of screening Premier League football matches using a 'foreign decoder'.
Ms Murphy was initially taken to court and ordered to pay £8000 in fines and costs for using a cheaper Greek decoder to show live football matches in her "Red White and Blue" pub in Portsmouth. By using the Greek Nova firm to screen matches, rather than the licensed broadcaster, she saved £362 per month. The Football Association Premier League ("FAPL") challenged this on the basis of preserving exclusivity in respect of the licences it grants to broadcast games.
Earlier this year, ECJ Advocate General Kokott appeared to support the use of foreign imported cards; considering that this honoured the objectives of the EU single market.
In this most recent round of the six year battle, the ECJ stated that a "system of licences" for broadcasting football games which resulted in broadcasters being granted "territorial exclusivity on a member state basis," and which restricted the viewing of matches using decoders in other member states, is contrary to EU Law. Therefore, national legislation which forbids the import, sale or use of foreign decoders is considered by the ECJ to be contrary to the freedom to provide services. Such legislation could not be justified on the grounds of protecting intellectual property rights or for the objective of encouraging the public to attend football stadiums.
The ECJ judges found that the Premier League matches could not be considered an "intellectual creation" and therefore the Premier League could not assert copyright ownership over the matches. Nevertheless, the connected media - such as an opening sequence, anthem or highlights - would attract copyright protection; therefore, in order to show these "works" the pub landlord would require the Premier League's authorisation. A possible tactic of the FAPL to overcome the absence of copyright protection in the game itself may be to increase the levels of the surrounding copyrighted material in order to prevent the use of foreign broadcasters. However, this could fall within the exception in section 31(1) of the Copyright, Designs and Patents Act 1988 which provides that there is no infringement if the inclusion is incidental to the broadcast.
The High Court in London, which previously sent the dispute to the ECJ for advice, will now proceed to make its final ruling in light of the ECJ judgment. The wider implications of the case have not yet fully materialised; although it appears that the result will be greater competition over broadcasting rights and potentially pan-European licensing for sports, movies and music. The FAPL may attempt to prevent this by displaying its logo broadly across the screen during matches. The aftermath of the ruling will be closely watched in the coming months.