Watching Football (Soccer) in Europe Is Greek to Me

November 11, 2011 GS2LAW

In the UK, the Football Association Premier League Ltd (FAPL) markets TV broadcasting rights for the EPL and grants exclusive live broadcasting rights for territory, under an open competitive tender procedure. As a result of global reception each broadcaster is mandated to encrypt its signal so viewers can only watch the broadcast of their territorial provider. Similarly, a broadcaster is not allowed to supply decoder cards to people from outside its contracted-for territory.

Seeking to stymie one of the only entrepreneurial ventures to come out of Greece in the last half-century, FAPL sued two Greek companies for selling Hellenic decoders to a benevolent publican, Karen Murphy, who could then broadcast matches at a much lower monetary cost but with the addition of many more syllables in commentary.

C-403/08 Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Philip George Charles Houghton and Derek Owen and C-429/08 Karen Murphy v Media Protection Services Ltd, were referred by the High Court to the ECJ.

Murphy crosses the half-way line

Murphy argued that she was entitled to show the matches because she was legitimately paying for a subscription from a Greek broadcaster and that to impose national borders to sell rights on a territory-by-territory basis and allow Sky’s exclusivity in the UK would be contrary to European competition and free trade laws. ??

The ECJ agreed with the basic Murphy premise that grants of licenses based on territorial exclusivity and which prohibited viewers from watching from another Member State contravened EU competition and free trade regulations.

Murphy is hacked down on the edge of the area

In a cynical twist, copyright was the basis for the ECJ ruling that using a Greek decoder to screen or ‘communicate to the public’ (the Copyright Directive 2001/29/EC) in a pub required the authorization of the author. “But what rights could the FAPL have” the crown chants … their video-sequences and graphics, replied the ECJ, those constitute “protected works” and a screening infringes such copyrights.

?The transmission in a pub of the broadcasts containing those protected works would constitute a ‘communication to the public’ within the meaning of the Copyright Directive 2001/29/EC, for which the authorization 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 authorized the broadcasting of their works.’ Therefore, in practical terms, the showing of such broadcasts would always infringe copyright. ?

Time for a Free Kick?

There is life in the old dog yet … the High Court has to now interpret this decision, and the days of experiencing histrionic Spanish commentators in a warm, healthy pub environment is at an end, but what about at home? Worry not, the Grinch that stole the Premier League is still taking action against suppliers of the decoders, and now the licenses granted to broadcasters are likely to be sold on a Europe-wide basis. Ironically, this will drive the prices up in places like Greece and reduce the viewing coverage of the EPL, but when did the guy on the street ever matter to those up on high?