October 4, 2011 – just a day out of 365 in a year, but this special day could turn into a historic day for top-level European football and the sale of its broadcasting rights. The European Court of Justice has decided that football fans have the right to watch their favourite football leagues using a Pay TV decoder card from anywhere in the continent regardless of their country of residence.
The decision of Europe’s highest court is likely to shake-up a whole industry and the value of lucrative broadcasting rights as European sports fans will be able to watch live matches through foreign TV services.
“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,” an official communiqué by the European Court of Justice stated.
The case was brought by Karen Murphy, an English pub landlady from Portsmouth. Murphy was fined £8,000 by a UK court for showing live matches in her pub five years ago. She used a satellite card from a Greek broadcaster to show EPL matches in her pub, instead of a more expensive Sky subscription. BSkyB, which owns exclusive rights to broadcast EPL matches in the UK, took her to court and in 2005, the Premier League won a criminal case against her. But Murphy took the case forward to the European Court and finally recorded a historic verdict by the highest court in the European continent today.
“In its judgment delivered today, the Court of Justice holds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot 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,” the official communiqué by the court continued.
“So far as concerns the possibility of justifying that restriction in light of the objective of protecting intellectual property rights, the Court observes that the Football Association Premier League cannot claim copyright in the Premier League 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.”
“For similar reasons, a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.”
“Finally, as regards the questions asked concerning the interpretation of the Copyright Directive1, the Court notes first of all that only 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. By contrast, the matches themselves are not works enjoying such protection.”
“That being so, the Court decides that 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, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works.”
This court ruling will have a major effect on all European leagues like the EPL, the Bundesliga, the La Liga, etc and it could mean that football fans in Europe will be able to pay less to watch these top leagues and matches.
“This is clearly a complex issue, one that the European Court of Justice (ECJ) has spent a significant amount of time considering. We are pleased that the judgment makes it clear that the screening in a pub of football-match broadcasts containing protected works requires the Premier League’s authorisation. Currently only Sky and ESPN are authorised by the Premier League to make such broadcasts. On the broader points that could flow from the ECJ judgment; the areas of law involved are complicated and necessarily we will take our time to digest and understand the full meaning of the judgment and how it might influence the future sale of Premier League audio-visual rights in the European Economic Area. The Premier League will continue to sell its audio-visual rights in a way that best meets the needs of our fans across Europe and the broadcast markets that serve them but is also compatible with European Law,” the EPL said in an official statement.
A statement by the DFL, the operators of the German Bundesliga, says: “We expected this verdict after the statement made by the Attorney General and the DFL is not surprised by it. Nevertheless we have to determine that the accepted way of handling broadcasting rights and the customization of right packages in different areas have been questioned on European level despite numerous warnings. We will review the grounds for the judgement in regard to any potential consequences. The DFL and its subsidiary DFL Sports Enterprises delved into the subject matter in the last few months and we made arrangements to keep the impact on national and international media rights at a minimum.”
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