The European Court of Justice (“ECJ”) gave a preliminary ruling yesterday which may have wide–ranging consequences for the licensing and broadcast of copyright material across Europe.
What’s it about?
The ruling actually relates to two cases in which the UK High Court stayed proceedings in order to refer questions to the ECJ about the correct interpretation of law. The questions broadly concern the use of foreign decoder cards by UK pubs to screen English Premier League Football matches. “Football Association Premier League v QC Leisure and Others” concerns the legality of importing foreign decoders, while “Karen Murphy v Media Protection Services” concerns the eponymous Karen Murphy using a Greek decoder in her Portsmouth pub, because subscribing to a Greek broadcaster is cheaper than subscribing to the UK rights-holder Sky.
The Football Association Premier League (“FAPL”) is objecting to the use of foreign decoders and subscription to non-UK broadcasters because it grants its licensees the exclusive right to broadcast matches of the Premier League and exploit them economically within their respective broadcasting areas – generally the country in question. In order to safeguard this exclusivity, each licensee is required to encrypt its satellite signal and to transmit it in encrypted form to subscribers within its assigned territory. The program is decrypted with a decoder card.
The applicable law here is not straightforward. The kind of questions referred to the ECJ included whether decoders were “illicit devices” under the Conditional Access Directive, whether a football match could be classified as a copyright work under the Copyright Directive, and whether the FAPL’s exclusive licences were restricting competition.
What did the court say?
The answers to the above were “no” (because foreign decoders don’t permit free access to protected services), “no” (sorry Lionel Messi, but the ECJ believes that “football is subject to the rules of the game, leaving no room for creative freedom for the purposes of copyright”) and “yes” (“agreements which are aimed at partitioning national markets according to national borders or make the interpenetration of national markets more difficult must be regarded, in principle, as agreements whose object is to restrict competition”).
Overall the ECJ reckoned that “such partitioning and such an artificial price difference to which it gives rise are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.” Where this leaves the concept of territorial licensing for any kind of copyright material is unclear. We may be seeing the first step towards pan-European licensing for sports, film and music, with consortiums of broadcasters bidding for rights.
What does this mean for the FAPL and the letting of broadcast rights?
The consolation goal for the FAPL is that the ECJ acknowledged it can assert copyright in things such as the opening video sequence, the Premier League anthem, various graphics and so on. This means that, in theory, pub landlords like Karen Murphy may still need to get permission of the FAPL to show these elements. This could lead to the FAPL devising a strategy to have as much copyright-filled material during the games as possible, in order to stop pubs from still subscribing to foreign broadcasters and just showing the matches.
However, even if the matches are filled with FAPL copyright material, surely such material would still be incidental to the match being broadcast, falling within the exemption in section 31(1) of the Copyright, Designs and Patents Act 1988: “Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast”? There’s a suggestion that the FAPL may even resort to having its’ logo flit randomly about the screen, like a menacing and unpredictable “False 9”! It will be fun to see “what happens next”!
PS apologies for reporting this a whole day after the ruling, but I needed to find time to actually read the thing and work out what it meant. I suppose I could have written something broad in advance, with made-up quotes, but I’ll leave that to the Daily Mail.
On October 5, 2011