The European Court of Justice decision on the Portsmouth pub’s right to tune into a Greek version of Premier League football meant a day of headline reactions (mainly over-reactions really), before, by nightfall, all had agreed the judgement needed very careful consideration.
The ECJ judgment said: “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, it is about decoders, dummy. Or, at least, it is on the face of it, for now. The free market demanded is in the means to pay for and see ‘foreign’ European TV services. It doesn’t say all content owners must sell all rights into a single, free content rights market. However, that is the implication of the ruling; what’s the point of complex territorial exclusive deals if anyone, anywhere in Europe can get hold of and re-sell the material by right.
The implications are indeed massive, but not so much for the Premier League. The amount it generates from non-UK European rights is not huge so even if it loses, say, half of it in the next rights round in 2013, that’s not disastrous. More dangerous is the de facto legalisation of the sale of foreign decoders which, in such straightened financial times, could catch on with hard-pressed British footie fans.
But, the removal of the motivation (and perhaps the right) to fragment the market territorially is much more serious for the film and TV drama market and probably for smaller sports like rugby and tennis.
Much TV drama and format shows are made by pre-sales finance – the territorial rights are pre-sold on the basis of a script or treatment and that money gets the production underway. Eliminating this part of the economy will hit indies hardest and harm most the very ‘creatives’ the European Commission champions a free content rights markets on behalf of.