The eagerly awaited landmark Karen Murphy foreign satellite football case reaches Europe today — and there is some support given to the arguments in favour of foreign satellite football screenings by the European Commission.
The views come in Judge Rapporteur's report for the hearing at the European Court of Justice into the appeal by Karen Murphy, licensee of the Red, White and Blue in Portsmouth, and foreign satellite suppliers QC Leisure, AV Station and SR Leisure.
Murphy is appealing against her conviction for screening Premiership football via Greek channel Nova Supersport rather than taking out a Sky subscription. She first took up the case in June 2006.
The Premier League is seeking a ban on importing, selling, hiring, advertising, installing, maintaining and use of decoders.
The defendants deny breaking copyright law and claim that the attempt to stop them selling or using the decoder cards is in breach of the EC Treaty, which guarantees the right of free trade between member states.
Restrictions
The European Commission highlights articles 28 and 49 of European competition law, which ban restrictions on imports and services among EU states.
These articles "must be interpreted as precluding the application of the national law of a member state" to ban the import, sale or use in that state of a device issued by a service provider in another state.
The Commission also highlighted article 81(1), banning restrictive agreements, such as restricting the use of smartcards outside the licensed territory.
This article was also cited by the EFTA Surveillance Authority, which monitors compliance within the European Economic Area.
The group said licensing agreements that prevent decoder cards being used outside the licensed territory "has as its object the prevention, restriction or distortion of competition".
The group also said decoder cards don't become "illicit devices" when used by consumers outside their licensed territory.
Unauthorised
However, the UK Government said the Premier League is entitled to act if decoder cards give unauthorised access to a live game.
The Premier League's right to license its broadcast rights for a fee in each member state is "part of the essential function of its copyright", the Government adds.
The French Government maintained that the exclusive licences don't infringe article 81(1) per se — it's up to national courts to consider the conditions on the restrictions.
The judgment, expected early next year, will take the form of answers to the questions posed by the High Court in England, about how EU law should be interpreted in this case.
It is then up to the High Court to apply the law, as defined by the EU, to Murphy's case, and reach its own conclusion. Either side could still mount an appeal — which could take years to exhaust if they go all the way to the House of Lords.
Murphy's Law timeline
27 June'06: Acquited by Judge Arnold as she had not received the transmission dishonestly. She had a letter from her brewery Gales recommending she took the Nova system.
26 Jan'07: Found guilty of two offences relating to breaching the FA Premier League's copyright at Crown Court by Judge Arnold. Fined £8,000.
15 March'07: Appeals decision in Crown Court. Conviction upheld by Judge Iain Pearson.
29 Nov'07: High Court appeal commences.
21 Dec'07: High Court judges Lord Justice Pumfrey and Mr Justice Stanley Burnton dismiss appeal.
24 June'08: High Court refers case against suppliers AV Station and QC Leisure to European Court of Justice
26 June'08: Murphy case referred to European Court of Justice
5 October'10: Murphy and foreign satellite cases heard by ECJ
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