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The European Court of Justice (ECJ) judgments (Cases C-403/08 and C-429/08) in the Portsmouth pub landlady case looks to have opened the door to legitimising the use of decoders to watch premium sports and other pay-TV content outside the territories for which they were licensed. Karen Murphy, the owner of pub in Portsmouth England, will be remembered for having challenged the current broadcasting system and allocation of sports broadcasting rights. The European Court of Justice (ECJ), on the 4th October 2011 endorsed the opinion of Advocate-General Juliane Kokott who argued that limitations imposed on foreign broadcasts breached EU laws on the freedom of movement of services and contrary to the single market. The ECJ confirmed that any laws which prevent anyone from using foreign satellite TV equipment to watch the FA Premier League (FAPL) football matches go against EU law.
The FAPL, the entity in charge of granting rights for the transmission of Premier League football matches, grants licences for live transmission on a territorial basis and for three-year terms. These rights are awarded to broadcasters under an open competitive procedure following an invitation to submit bids on a global, regional or territorial basis. Demand will then determine the territorial basis on which the FAPL sells its rights. When a bidder wins a package of broadcasting rights for the live transmission of Premier League matches, it is granted the exclusive right to broadcast them in that area.
The proceedings prior to the judgement show that in order to protect the territorial exclusivity, broadcasters undertake, in their licence agreement with FAPL, to prevent the public from receiving their broadcasts outside the area for which they hold the licence. In turn, the ECJ ruled that national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services.
From a competition law perspective the judgement reaffirmed that “a system of exclusive licences is also contrary to European Union 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.” This decision will surely mean that the system adopted by the FAPL and its current exclusive agreements with broadcasters such as Sky Sports and ESPN will have to be reviewed and is expected to lead to cheaper viewing of foreign broadcasts.
As regards the issues raised concerning the interpretation of the Copyright Directive, the Court noted that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. The matches themselves are not works enjoying such protection.
Whereas the decision opens up opportunities for those individuals who watch overseas broadcasts at home, it still remains unclear whether these broadcasts can be shown in pubs using foreign decoders this because the ruling raised a number of copyright issues. The decision and its effects still have to be absorbed by all concerned. It will surely generate more discussion in the days and months to come!
Press Release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-10/cp110102en.pdf
Full text: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-403/08
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