ECJ ruling leaves future open

12-Oct-2011 - Last updated on 12-Mar-2017 at 02:33 GMT

ECJ Ruling: 'Previous convictions may be called into question' says Peter Coulson

I am put in mind of that horsey scrum at the beginning of the Grand National, when everyone is, in fact, jockeying for position before the tape goes up. Spotting your own horse in the chaos is extremely difficult, and he may have fallen down at the first fence before you see him.

So it is with the situation after the European Court of Justice (ECJ) ruling last week on satellite TV. Not surprisingly, each ‘side’ (and there are more than two, readers) is putting its own spin on the decision, while looking for ways to predict how the future will pan out.

One of the key rulings made by the judges, which did not appear earlier, is that a football match is not a work of art and is therefore not strictly covered by copyright laws. It is not a ‘creation’ for which anyone can claim authorship, so the permission of the author need not be sought or obtained in advance. That, at a stroke, got rid of a number of arguments about copyright that could have made the issues even more complex.

The second key point was that to partition Europe into countries or sectors and sell exclusive rights at different prices for football matches, and in particular to bind the broadcasters not to allow use outside their own territory, was anti-competitive and against the Treaty of Rome.

The court said that nothing presented to them either by the FA Premier League (FAPL) or Media Protection Services, the FAPL ‘enforcers’, dissuaded them from that point. In particular, the charging of a premium for the assignment of broadcasting rights in certain cases was not justified simply to protect the intellectual property rights of the owners, in this case the Premier League.

It seems to me that this point will force the FAPL into a major rethink of how they licence football in Europe, whatever short-term remedies they might contemplate. They will still fall foul of certain aspects of this judgment, even if they establish more ‘copyright material’ in the broadcasts and even if the national courts accept that there is enough to override the match itself, which may be doubtful.

Although there is a degree of editorial work in a football match (different camera angles, replays, slow motion, diagrams etc), it does not seem to me that the ECJ was contemplating that this would affect the ‘principal element’, which was the match between two teams, and what people came to watch.
In the immediate aftermath of this decision, it may be that the High Court will quash Karen Murphy’s conviction and this in turn will call into question previous convictions for using European satellite systems (but not non-European ones, which are not covered by the judgment).

What is interesting is the position of any licensee who has either lost his personal licence or had a conviction registered against him for a ‘relevant offence’. If his conviction is quashed, then he may be in a position to claim compensation, or at least have the conviction removed from his licence records, or his licence reinstated. That involves some complexity not yet visited in licensing so far.

If the FAPL does manage to establish a copyright position, of course, this may affect its immediate rights in terms of how it deals with individual broadcasters, but it seems to me that the territorial issue will still remain in play. Of course, this leaves out the position of the British Government, which along with the French and Italians supported the FAPL case in the hearings. Nothing precludes some legislative changes in copyright law (examples of which were mentioned in the judgment), which might effectively move the goalposts yet again!