ECJ Judgment: The case, and the implications

Foreign satellite ruling: What will it mean for licensees?

The European Court of Justice’s (ECJ’s) judgement rocked football last week, when it ruled in favour of Karen Murphy in a long-running case against the Premier League for screening football matches via a Greek decoder system.

What’s the background?

The ECJ investigated the legality of foreign satellite football after the UK’s High Court referred the appeal of Hampshire licensee Karen Murphy in 2008.

Murphy, of the Red, White & Blue in Southsea, was appealing her conviction for screening Premier League football via Greek channel Nova Supersport.

The ECJ was also looking at civil action by the Premier League to stop foreign-satellite suppliers importing foreign decoder cards into the UK. The case hinges on whether EU laws on movement of goods between member countries permit the use of foreign satellite systems in UK pubs.

What did the ruling say?

The ECJ ruled that restricting the sale of European foreign-satellite decoder cards is “contrary to the freedom to provide services” and 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”.

In other words, it is against European law to ban the import and use of foreign decoder cards — as long as they are from the EC — in the UK.

The ruling also claimed that a “system of exclusive licences is also contrary to European Union competition law”.

However, it added that part of football broadcasts are copyrighted — such as the credits, logos and the theme tune of the Premier League.

So who has won?

Essentially, this is a victory for Murphy and the foreign-satellite suppliers. The ECJ ruled that football was not an art and, therefore, not subject to copyright law. The ruling will now come back to the High Court to decide how it will be implemented in UK law. Until that happens, nothing has changed in law.

Are there any loopholes for the Premier League and Sky?

The one ray of hope for the Premier League — and Sky — in the ruling was that the ECJ ruled that various parts of the broadcast were subject to copyright law (such as the Premier League logo, the credits and the Premier League anthem). The Premier League believes this still means that broadcasts in pubs are illegal.

“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,” it said.

“Currently only Sky and ESPN are authorised by the Premier League to make such broadcasts.

“The Premier League will continue to sell its audio-visual rights in a way that best meets the needs of our fans across Europe and the broadcast markets that serve them but is also compatible with European law.”

So, is that true?

It is down to the High Court to decide but the Premier League’s interpretation is disputed by a leading competition lawyer.

Julian Maitland-Walker, senior partner and competition lawyer at Maitland Walker, said he believes that the UK courts will rule to allow this copyright to be waived as there is a clause in the Copyright Directive, which allows a minimal copyright content as an ‘ancillary’ to the main programme without copyright permission.

He said: “The Premier League has raised this point about the parts of the football match screening that do benefit from copyright.
“I think it (UK court) will allow this to be reproduced without giving rise to copyright issues.”

What will the Premier League and Sky do?

They could try and up the amount of copyrighted material within the broadcasts in a bid to be in a position to stop pubs screening games because it would be a breach of copyright.

For example, they could make sure that their logo is on screen all the time and that the anthem is played during every replay. They may even ingrain the Premier League logo onto pitches across the country.

The Premier League could also choose to limit the number of matches on offer across Europe — and not offer any games during the so-called 3pm closed period. Alternatively, it could sell the rights on a pan-European basis to just one broadcaster.

What happens next?

The High Court will decide how to implement the judgement in UK law. If incorporated into law, a host of broadcasters from across Europe could begin selling Premier League football freely in the UK, driving down the costs for pubs.

Secondly, it’s possible that one broadcaster could try to buy screening rights across territories, although this would be hugely expensive and no doubt raise competition concerns.

The Premier League could even decide not to sell its rights to other countries.

Either way, it would undoubtedly take a hit on the value of its screening rights when they come up for re-negotiation, meaning less money for clubs and perhaps an end to those £50m transfer deals.

What about those who have been prosecuted?

If the High Court decides to quash Karen Murphy’s conviction, then it could be open season for licensees convicted of the same offence to have those convictions overturned.

That could mean they have any fines repaid and those who lost their licence could have it reinstated. There could also be
a case for compensation.