The judgement could be costly to those who sell exclusive territorial rights to sports and other events and will be costly and complicated for the broadcasters who buy those rights.
However, the free market ruling is more pertinent to private use – essentially declaring there must be a free market in decoders in Europe – as using an ‘unauthorised’ decoder for public viewing may still be a breach of the broadcaster’s copyright, specifically in the presentation – graphics etc – around a game rather than the game itself.
Tony Ballard, partner at law firm Harbottle & Lewis, said:”The Court held that the showing of a broadcast in a pub without consent is itself an infringement of copyright. Rights holders may therefore yet see off the pubs and the biter may yet be bit.
“This is because the pub is perfectly free to get itself a decoder card from a Greek broadcaster,which the Court has ruled is a single market issue, but if they use the card in the pub then that is a copyright issue. In other words, the landlady can’t use the card to show Premier League football to customers,bu tonly for her private use.”
The case came about because a UK pub landlady was fined £8,000 after being charged with using a Greek decoder to allow her customers to watch Sky soccer on Nova for about one third of what Sky charges for public house subscriptions.
The ECJ – which has followed the advice of its Advocate – now says national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services. It said national legislation, which banned the use of overseas decoders, could not “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”.
Mrs Murphy, who has been fighting the case for eight years, said she was “overwhelmed with relief” and looking forward to getting the case back to the High Court. The ECJ findings will now go to the High Court in London, which had sent the matter to the ECJ for guidance, for a final ruling.
The judges said the Premier League could not claim copyright over Premier League matches as they could not considered to be an author’s own “intellectual creation” and, therefore, to be “works” for the purposes of EU copyright law. But the ECJ did add that while live matches were not protected by copyright, any surrounding media, such as any opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics, were “works” protected by copyright. To use any of these parts of a broadcast, a pub would need the permission of the Premier League.
The Premier League’s television income from mainland Europe is about £130 million, less than 10 per cent of its total £1.4 billion overseas rights deal.