In early October, a European Court found that a ban on the use of foreign decoders to watch live broadcasts of English Premier League football matches is unlawful.
Football Association Premier League Limited (FAPL) runs the English Premier League. This governing body usually licences its broadcast rights on a national basis since there is limited demand for pan-European rights. When a bidder wins a tender for a particular region, FAPL awards the bidder the exclusive right to show live Premier League matches in that area. In order to protect this exclusivity, FAPL requires each licensee to ‘scramble the picture’ provided to its subscribers who, in turn, require decoders to decrypt the signal. In addition, FAPL seeks to prevent the circulation of decoders outside the territory of the relevant licensee.
FAPL took various legal actions in order to prevent attempts by English pubs to get around this exclusivity. These proceedings, collectively known as the “pub football” cases, were referred by the English High Court to the Court of Justice of the European Union for preliminary ruling.
The European Court found that national legislation preventing UK residents from watching TV broadcasts from other Member States infringes the EU free movement of services principle. Indeed, the Court also held that this restriction is not justified by the necessity of ensuring appropriate payment for the rights-holder since FAPL is already remunerated by a Greek based broadcaster for the right to show Premier League matches in Greece. While the Court stated that granting a licensee the exclusive right to broadcast Premier League matches is not, in itself, anti-competitive, it did hold that ancillary provisions aimed at preventing the sale of decoders outside the relevant territory are unlawful. Given that there is no copyright in the live footage of the matches themselves, the Court noted that FAPL could not restrict broadcasts of the actual matches. However, associated works such as logos, graphics and highlights of previous games are protected under copyright and thus require the prior approval of the rights-holder before being broadcast to the public.
The “pub football” cases represent good news for consumers wishing to watch foreign pay-TV since they cannot be prevented from purchasing decoders sourced from abroad. Indeed, the judgment clearly undermines FAPL’s current model of selling exclusive broadcast rights to the English Premier League on a territory by territory basis. Accordingly, future licences for the broadcasting of Premier League games may be packaged on a pan-European basis with broadcasters selling packages to subscribers at a single price across the EU. Moreover, any business model for the distribution of other forms of digital content such as books, films and music that uses a ‘country by country’ basis will need to be reconsidered.
Contributed by Cormac Little.
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