In October 2011, the European Courts of Justice (the “ECJ”) gave a landmark ruling on two cases involving the Premier League and a pub landlady.
The Background
The Football Association Premier League (the “FAPL”) grants exclusive licences to broadcasters across Europe to broadcast Premier League football matches within their respective areas or “territory”, generally the country in question. The FAPL requires broadcasters to encrypt their transmissions of matches and subscribers are supplied with decoder cards to allow them to watch the matches, which are not to be sold or re-sold to subscribers in other territories.
Proceedings were issued against Karen Murphy, the landlady of a pub in Portsmouth, by the FAPL for using a Greek decoder card to show matches broadcast by the Greek broadcaster to her pub customers, circumventing the higher charges of the UK broadcaster. The FAPL also challenged the legality of the import and resale of foreign decoder cards. Several questions were referred to the ECJ.
The Ruling
The ECJ found that national legislation prohibiting the import, resale or use of foreign decoder cards is inconsistent with the fundamental principle of the freedom of movement of services within the European Union and, therefore, unlawful. It could not be justified by the objective of encouraging the public to attend football stadiums (as 3pm Saturday matches are not licensed to the UK broadcaster). It was also excessive in protecting intellectual property rights.
In addition, licensing agreements that prevent cross-border supply of decoder cards, were judged to be contrary to EU competition law, as they prevent broadcasters of other Member States from entering the market.
Interestingly, the court deemed that copyright does not subsist in a football match itself, as the game is subject to rules “leaving no room for creative freedom for the purposes of copyright”. Where copyright was deemed to subsist, e.g. in the Premier League anthem and logos, it was decided that copyright holders had not envisaged and, therefore, licensed the communication of these to an “additional public”, such as the pub customers in a different Member State. Karen Murphy’s showing of Greek broadcasts was, consequently, judged as unlawful.
Conclusion
This ruling could level the market across Member States and introduce competition between broadcasters. However, broadcasters may maintain their territorial exclusivity by adapting their programmes to make more use of copyrighted works peripheral to the sport they broadcast.
