THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at the UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues of the day. In TSL’s latest column, Andrew Nixon discusses todays judgment by the European Court of Justice on showing live Premier League matches via a foreign satellite decoder.
4 October 2011
Portsmouth pub landlady Karen Murphy has today won a stage of her legal case before the European Court of Justice (ECJ) over the right to show Premier League games in her pub – but the verdict throws up almost as many questions as it answers, and the ‘victory’ is not what it seems.
In one sense, the Court ruled that Ms Murphy is entitled to show live Premier League matches via a foreign satellite decoder; but crucially this right could depend on permission being granted by the Premier League itself, and that permission won’t necessarily be forthcoming.
The decision, which is not surprising in view of the Advocate General’s opinion on the case earlier this year, could have a significant impact on how sports broadcasting deals are brokered in the future. The decision in effect means that the Premier League will no longer be able to sell the rights to Premier League football on a territorial basis, or rather prevent the free sale of the means of distributing those rights within Europe.
It will also mean that the consumer will be able to access Premier League football from foreign territories. The reason for the decision is because sale of rights on a nation by nation basis (as opposed to pan-European) is, according to the ruling, a fundamental breach of European Legislation on the Free Movement of Services.
The Premier League’s argument will have been (and still will be) that exclusive licensing agreements are justified because their objective is to protect intellectual property rights, but this was dismissed by the ECJ, with the Court ruling that live matches could not be protected by copyright.
The intellectual property issue is not however clear cut: the Court also ruled that ‘additionals’, such as opening video sequences, the Premier League music, certain graphics and pre-recorded highlights did fall within a category protected by copyright, which on the face of it has to be correct.
This in itself creates a problem for publicans who wish to use foreign decoders, in that they would need the permission of the Premier League to use these copyrighted works. This element of the judgment must not be overlooked, as it provides a layer protection for the Premier League if it wants to police it.
This is clearly a landmark ruling. From a legal perspective, certain parts of the judgment are hard to marry up. For example, it is difficult to come to a landing of why match footage, the copyright for which would normally belong to the broadcasters, is not protected but the ‘additionals’ are. The ECJ has got around this by ruling that transmission in a pub of elements of the broadcast such as the opening video sequence or the music, constitutes a ‘communication to the public’ which falls within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary.
What of the commercial ramifications for the rights holder?
The reality is that the Premier League and its broadcast partners will have been aware that this ruling was coming since the Advocate General made her opinion known earlier this year. As such, the affected parties will no doubt have contingency plans in place. Clearly, that will involve a very different focus when the Premier League retenders and that focus will inevitably involve some sort of pan-European tender, or even a Premier League channel.
Will this mean publicans will have carte blanche to show Premier League football at much cheaper prices?
The ruling needs to be ratified by the Court, but in principle the answer is yes. However, the albatross in the corner is the ‘split’ ruling on the copyright, so to avoid breaching copyright law, publicans will need to find a way to show matches without the additional extras.
What will this mean for the everyday domestic consumer?
Again, in principle, it will open up the possibility of access to cheaper Premier League football, and the copyright restrictions will be far harder to police by the rights holder. However, the practical reality is that (at least for the time being) language barriers will mean most people will stick with their current provider.
What about the football clubs?
In principle, the concept of cheaper access to Premier League football could devalue the rights, and therefore devalue the broadcasting deal. That could in turn have a knock on effect on the money generated by TV which filters its way down to football clubs and below.
However, in real terms the Premier League will explore other ways to exploit their rights and what they come up with is unlikely to lead to a significant reduction in the money generated from TV. For example, as above, a pan-European Premier League channel could be an option.
And finally, will it affect just sport?
No; rights holders in other sectors (such as the film industry) which sell broadcasting rights on a territorial basis will inevitably be concerned about the impact to their industries.
Andrew Nixon is an Associate in the Sport and Media Group at Thomas Eggar.
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