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Broadcasting territorial exclusivity with a decoder card is contrary to EU law

Judgment in 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

Judgment in Cases C-403/08 and C-429/08 Football Association Pr
published on UK Free TV

Here is today's ruling from the EU Court of Justice, which is the highest body for trade-based disputes in the EU:

A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law

The Football Association Premier League ('the FAPL') runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches. It grants broadcasters, under an open competitive tender procedure, an exclusive live broadcasting right for Premier League matches on a territorial basis. As the territorial basis generally corresponds to a single Member State, television viewers can watch only the matches transmitted by the broadcasters established in the Member State where they reside.

In order to protect such territorial exclusivity and to prevent the public from receiving broadcasts outside the relevant Member State, each broadcaster undertakes, in the licence agreement concluded with the FAPL, to encrypt its satellite signal and to transmit the signal, so encrypted, by satellite solely to subscribers in the territory which it has been awarded. Consequently, the licence agreement prohibits the broadcasters from supplying decoder cards to persons who wish to watch their broadcasts outside the Member State for which the licence is granted.

The disputes giving rise to the present cases concern attempts to circumvent that exclusivity. Certain pubs in the United Kingdom have begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom.

Since the FAPL takes the view that such activities undermine the exclusivity of the television broadcasting rights and the value of those rights, it is seeking to bring them to an end by means of legal proceedings. The first case (C-403/08) concerns a civil action brought by the FAPL against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs. The second case (C-429/08) has arisen from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.

In its judgment delivered today, the Court of Justice holds 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 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 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.

Also, 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, 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.

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 concerning the interpretation of the Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10, corrigendum at OJ 2002 L 6, p. 70)), the Court notes first of all that only the opening video sequence, 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 decides 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.

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Tuesday, 4 October 2011
KB Aerials Sheffield

9:34 PM

Does this mean that pubs can use the Greek broadcast if they dont show the first bit of the broadcast --- the opening video sequence or the Premier League anthem, ?

(I am not a sports type person so dont know much about football so excuse ignorance)
Which greek satellite is it were talking about ?

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KB Aerials Sheffield's 274 posts GB flag
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10:18 PM

It sounds like it KB, but I guess if they put a copyright logo on the screen and that is broadcast, it would probably contravene the last bit. Like a loop hole maybe.

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Aubs's 4 posts GB flag
10:29 PM

Does this also mean that tv3 irelands interventions to have utv removed from southern irelands sky epg is also against EU law?

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mark's 1 post IE flag
Wednesday, 5 October 2011
Mike Dimmick

1:09 AM

KB: Lyngsat says Novasports are on Hotbird 8/9, 13°E. Encrypted using Irdeto 2 - you can get an Irdeto CAM to plug into a free-to-air receiver at a number of UK websites (or at least they're priced in pounds).

Funny how UK channels are on a satellite further east than the Greek channels!

Nova are well aware of this situation, they carry the English commentary (which I believe is the Sky commentary!) on a second audio stream. All adverts and match build-up and review are in Greek (or were a couple of years ago).

It does test your knowledge of the Greek alphabet to figure out which channel is showing your team's match... as I recall, it was in the two seasons when I was interested.

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Mike Dimmick's 2,486 posts GB flag

5:54 AM

There is another thing sky could do they could go down the planing laws. Most of the pubs have 3 dishes of 80 cm or over this is what sky should do is go to the local planing department and object to the size and amount of dishes they stand a better chance of wining that.

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Mazbar's 384 posts GB flag
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Les Nicol

8:51 AM
Castle Douglas

Maxbar - "In an extraordinary ruling, lawmakers in Strasbourg have warned that banning dishes on listed buildings, social housing and even private homes could breach the right to freedom of expression", The Equality and Human Rights Commission Britain's discrimination watchdog, has now published new guidance warning that Landlords could be at risk of being sued if they try to stop their tenants putting up a satellite dish.
Housing minister Grant Shapps said that this effectively drives a horse and cart through planning laws in the UK.
A 90cm dish which "was" the maximum size allowed will bring in most pan European Satellite transmissions in the UK.

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Les Nicol's 991 posts GB flag
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Les Nicol

9:02 AM
Castle Douglas

Mazbar - Just to add - There may be still a problem for pubs in copyright issues with flashing banners etc. However we could now see European Club matches and it is technically feasible to add an English Audio track as currently with Aljazeera and Tring.etc

Pubs apart thuruling effectively gives the green light legally to home users to take European TV services and for access cards to be purchased from retail trade outlets here legitimately.

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Les Nicol's 991 posts GB flag
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12:02 PM

Mazbar: There is nothing to complain about. The highest courts decided, back in the BSB vs Sky days that there were no planning issues with domestic or commercial buildings having any number of dishes. Only on Listed Buildings would anyone have to apply for permission to mount any number of dishes.

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Briantist's 38,915 posts GB flag
KB Aerials Sheffield

2:50 PM

oooh goody _ will have 7 dishes up - errr urrrm - nope will go with one dish and a motor?

- Might send some work our way ! any glimpse of additional work the better!

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KB Aerials Sheffield's 274 posts GB flag
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6:33 PM

As far as I know you can have 2 dishes 1 a max of 100cm and a second a max of 60cm on any 1 property. Any more or bigger and you need planning permishion.

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Ian's 497 posts GB flag
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