The European Court of Justice has ruled in favour of the English pub landlady who used a foreign satellite TV decoder to screen live Premier League football games.
The decision could have far reaching implications for DTH operators across the continent…
The European Court of Justice has ruled in favour of the English pub landlady who used a foreign satellite TV decoder to screen live Premier League football games.
The decision could have far reaching implications for DTH operators across the continent who have built their pay-TV business models on providing exclusive premium content, in particular sport and movies. As Tony Ballard, partner at law firm Harbottle & Lewis, argued, the judgement by both the ECJ and the earlier one by the Advocate General “calls into question all exclusive territorial licensing practices relating to the broadcast of digital content in Europe.”
Ms Murphy was ordered to pay almost £8,000 in fines and costs after she was taken to court by the League for using a Greek decoder from satellite broadcaster Nova in her Portsmouth pub to screen matches, thereby avoiding the League’s own controls over where its matches are screened. The UK High Court then referred the case to the EU after Murphy appealed, with the Luxembourg court reaching its verdict on 4 October.
In summing up its decision, the ECJ said that an exclusive system of licences for the broadcasting of football matches in different EU countries – effectively stopping fans watching the broadcasts with a decoder card in other member states – is “contrary to EU law.”
The judgment continued: “The Court of Justice holds that 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.”
The judges said that, in trying to justify its restrictions, the Premier League could not claim copyright over Premier League matches themselves, as such sporting events could not be considered to be an author’s own “intellectual creation” and, therefore, to be “works” for the purposes of EU copyright law.
Even if there was such copyright protection for sporting events, banning the use of foreign decoder cards “would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned,” the judges went on.
However, the ECJ did caution that “the screening in a pub of football-match broadcasts containing protected works requires the authorisation of the author of those works.”
Such “protected works”, said the judges, could include the opening video sequence or the Premier League anthem, which is a matter for copyright.
In response to the decision, the Premier League stated: “”We are pleased that the judgment makes it clear that the screening in a pub of football-match broadcasts containing protected works requires the Premier League’s authorisation. Currently only Sky and ESPN are authorised by the Premier League to make such broadcasts.”
“The ECJ judgment responds to 18 specific questions referred by the UK High Court. They have now answered these questions in terms of how European Law applies. It is now for the High Court to consider how the ECJ judgment affects the cases in question,” the League added.
As such the ruling still leaves open the potential for pub landlords to be fined if they are found guilty of infringing the League’s copyright. As Ballard points out, “The court held that the showing of a broadcast in a pub without consent is itself an infringement of copyright. Rights holders may therefore yet see off the pubs and the biter may yet be bit.”
Nonetheless, the decision still has a huge impact on the use of the future acquisition of exclusive broadcast rights by pay-TV providers in the EU. Intellectual property lawyer Toby Headdon, of commercial law firm Berwin Leighton Paisner, said: “This is a clear statement from Europe that intellectual property rights cannot be relied upon to fragment the market and charge different prices in different EU countries for the same content.
“The decision looks set to change the licensing landscape in Europe, not just for football broadcasts but potentially for other content such as films and music.”
