The decision of the Court of Justice of the European Union (“ECJ”) released today is the outcome expected, but may have far reaching consequences comments Michael Forrester of Ralli’s iSolicitors team.
These cases concerned the screening of live premier league football matches in pubs through foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches.
The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom.
The first case concerns a civil action brought by the Premier League against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs.
The second case arose from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.
Crucially, the ECJ held that:
1) A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law;
2) The Premier League cannot claim copyright in the matches themselves, as those sporting events cannot be considered to be an author’s own intellectual creation and, therefore, to be ‘works’ for the purposes of copyright in the European Union;
3) However, the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright;
4) The screening in a pub of football match broadcasts containing protected works requires the authorisation of the author of those works;
5) Therefore, the transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary.
Overall, the ruling may encourage rights holders to try working around the ruling by including copyright protected material throughout the media being streamed.
However, it is clear that rights holders must comply with the European free market or face legal challenges.
These cases raise a number of crucial issues for the enforcement and licensing of intellectual property right across the European Union. In agreeing with the previous opinion of Advocate General Kokott published in February, the ECJ have changed the way rights owners will need to consider selling their intellectual property rights and services across member states.
This decision was not unexpected, and I suspect the premier league will have a plan to deal with this issue.
However, other rights holders who sell rights in similar ways – for example music, books and films may all be affected. The treatment of this case by the High Court of England and Wales when it returns for a final ruling is likely to necessitate a review by rights holders across a number of sectors.