COPYRIGHT / COMPETITION
Broadcasting, licensing

Pub landlady Karen Murphy has succeeded in her European court battle against the Premier League over the use of a Greek TV decoder to screen Live Premiership football matches in the UK.  This update is taken from information contained in a press release from the Court of Justice of the European Union (No 102/11, Luxembourg, 4th October 2011).

The Court of Justice held in a preliminary ruling 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 (live football matches) football stadiums.

So far as concerns the possibility of justifying that restriction in light of the objective of protecting
intellectual property rights, the Court observes that the Football Association Premier League (FAPL) cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author’s own intellectual  creation and, therefore, to be  ‘works’ for the  purposes of copyright in the European Union.

The Court also held that even if national law were to confer comparable protection upon sporting events – which would, in principle, be compatible with EU law – a prohibition on using foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned.

In this regard, the Court observes, first, that when calculating such appropriate remuneration it is possible to take account of the  actual and potential audience both in the Member State of broadcast and in any other Member State where the broadcasts are received, and that it is thus not  necessary to limit the free movement of services within the European Union. Second, payment by the television stations of a premium in order to ensure themselves absolute territorial exclusivity goes beyond what is necessary to ensure the right holders appropriate remuneration, because such a practice may result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

For similar reasons the Court found 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.

The Press release goes on to say “It is true that European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast. However, the licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.”

Finally, as regards the questions asked (by the High Court) concerning the interpretation of the Copyright Directive, the Court notes first of all that only the opening video sequence (of the transmissions), 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. By contrast, the matches themselves are not works enjoying such protection.  That being so, the Court decided that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive,  for which the  authorisation of the author of the  works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works.

The case will now revert to the High Court for a final ruling but this decision has the potential to change the way Premier League rights are licensed across Europe and lead to a revision of the exclusive deals with Sky and ESPN (see the 1709 Blog for more thoughts on this).

http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-10/cp110102en.pdf
Cases C-403/08 and C-429/08
Football Association Premier League and Others v QC Leisure and Others 
Karen Murphy v Media Protection Services Ltd

For background see Music Law Updates March 2007http://www.musiclawupdates.com/07Marchlawupdates.htm

1709 Blog http://the1709blog.blogspot.com/2011/10/murphys-law-of-licensing.html