Landlady wins Premier League decoder case

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Landlady wins Premier League decoder case
09.44 Europe/London, October 4, 2011 By Julian Clover

The European Court of Justice has ruled that national laws that prohibit the import, sale of use of overseas smart cards are contary to the freedom to provide services.

The decision represents a victory for Karen Murphy, the Portsmouth pub landlady who had campaigned to use a subscription from the Greek Nova sat caster, rather than pay the rates set by Sky.

In its ruling the ECJ said the previous ban on overseas decoders could not “be justified either in the light of the objective of protecting intellectual property rights or by objective of encouraging the public to attend football stadiums.

As well as a significant saving on what would be paid to Sky, foreign satellite services such as Nova are able to screen a 3.00pm Saturday kick-off, unable to be shown on British TV because of the desire to protect attendance at smaller clubs.

The UK rights holders Sky and ESPN now have to consider their position, as well as the Premier League itself, which commands a multi-million pound sum for the six UK packages. A particular issue will be the lucrative subscriptions paid to show Sky Sports in public venues.

Were the rights to be sold on a pan-European basis Sky, which through News Corp has related ventures in Germany and Italy, could easily outbid the smaller sums paid by platforms such as Nova.

 

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ECJ: Decoder market must be free



The English Premier League has lost its fight before the European Court of Justice to the extent it has ruled there must be a free market in the provision of programme service decoders.

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.