In early February, Advocate General (AG) Kokott of the European Court of Justice (ECJ) found that public houses should not, under EU law, be prevented from showing live Premier Leagues matches using foreign decoder cards.
By way of background, the Football Association Premier League, (FAPL) licenses the exclusive rights to broadcast its football matches within certain areas, generally on a country by country basis. Sky and ESPN hold the exclusive broadcast rights for showing Premier League football in the UK. In order to safeguard the exclusive rights of licensees in other territories, licensees must prevent their broadcasts from being viewed outside their respective broadcasting areas both by encrypting the satellite signal and by ensuring that the necessary decryption equipment is not available for purchase outside of that territory. In 2007, Karen Murphy was prosecuted and fined for showing Premier League matches in her pub using a decoder card sold by Nova, the Greek rights holder for Premier League football. Ms. Murphy appealed to the UK High Court which subsequently referred a number of questions to the ECJ.
AG Kokott found that where the FAPL placed content on the European market, it could not subsequently rely on intellectual property rights to prevent the content being broadcast across the EU. The AG also stated that an entity like the FAPL breaches EU competition rules where it enters a series of exclusive licenses under which the broadcaster is licensed to show the content only within a certain territory while preventing its decoder cards from being used outside the licensed territory.
While the ECJ is not bound by an AG’s views, previous views have frequently formed the basis of ECJ judgments. If the ECJ follows the AG’s view, it will no longer be permissible for rights’ holders to require their licensees to prevent content from being broadcast across the EU. The development of a pan-European licensing system may offer greater choice to consumers who will no longer be prevented from looking outside their national borders in search of a better deal.
Contributed by Cormac Little.
