European Court of Justice sets copyright framework for football broadcasts

A pub landlady has won the latest stage of her legal battle for the right to air Premier League games in her pub using a foreign TV decoder. Karen Murphy had bypassed a British supplier of tv decoders that had acquired the exclusive right to transmit Premier League football in Britain. Ms. Murphy chose to buy a much cheaper Greek decoder to bypass controls over match screening in her Portsmouth pub. However, she was met with fines and legal trouble. She took her case to court.

During proceedings it appeared that many points of EU law regarding copyright, broadcasting and the free movement of services within the EU where difficult to apply to this case. That’s why the High Court of England and Wales referred the matter to the European Court of Justice (ECJ) for a preliminary ruling on questions of EU law. The ECJ now says national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services.

The ECJ’s answers to the preliminary questions in this case are undoubtedly of huge consequence to major football competitions -like the Premier League- and their current exclusive agreements with TV channels on live broadcasts. Not only the question whether (legally marketed) foreign decoders may be used in pubs was addressed but also a number of EU copyright issues related to football broadcasts are explained by the court.
In short: blocking the use of foreign decoders is contrary to EU internal market law. However, the subsequent showing of the images in a pub is probably subject to intellectual property rights of the original broadcaster.

The ECJ 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". According to BBC reporter Bill Wilson, this ruling could lead to a major shake-up in the way TV rights have to be sold in the European Union.
 
Karen Murphy’s battle is not completely over yet. She can now watch Premier League matches herself via the Greek service, but it's not clear whether she can show them to her customers. The court has ruled that the live football action in itself is not a creative work or performance of the broadcaster and therefore there is no copyright to those elements of the broadcast. However, there is copyright in the "branding" around the football - the Premier League graphics, music and edited footage, such as match highlights and action replays.

If the High Court agrees, pubs will probably still need the League's permission to show its matches. This is because it will be practically unfeasible to air only uncut live football action without any sound or logo of the original tv broadcaster, although of course it is theoretically possible. It's now up to the High Court of England and Wales to interpret today’s ruling. We will have to wait for this final decision for several months, however, it is unusual for a member state High Court to pass a different judgement from one provided by the ECJ.

Sources: BBC, European Court of Justice, Joined Cases C-403/08 and C-429/08, October 4, 2010 (Premier League c.s. / Murphy c.s.)