Update on Premier League Football Broadcasting Using Foreign Decoder
04 October 2011
A pub landlady has won the latest stage of her fight to air Premier League games using a foreign TV decoder.
Courtesy of bbc.co.uk
Karen Murphy had to pay nearly £8,000 in fines and costs for using a cheaper Greek decoder in her Portsmouth pub to bypass controls over match screening.
But she took her case to the European Court of Justice. The ECJ now says national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services.
The decision could trigger a major shake-up for the Premier League and its current exclusive agreements with Sky Sports and ESPN, and pave the way to cheaper viewing of foreign broadcasts for fans of top-flight English games.
However, whereas this opens up opportunities for individuals to watch overseas broadcasts at home, it remains unclear whether in future games can be shown in pubs using foreign decoders and broadcasts, as the ruling also threw up a number of copyright issues.
The ECJ 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".
"I'm relieved, very relieved," Mrs Murphy told BBC Radio 5 live.
"It has been a rollercoaster, highs and lows, nerves... It has been a strange time and I am glad it is coming to an end."
She added: "I feel I have taken on the Premier League and Sky."
Mrs Murphy said she no longer had a decoder box in her Red, White and Blue pub and would wait for the "stamp of approval" from the High Court before reinstating it.
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.
However, it is unusual for a member state High Court to pass a different judgement from one provided by the ECJ.
"In practical terms, the Premier League will now have to decide how it wishes to re-tender its rights," said sports media lawyer Daniel Geey of Field Fisher Waterhouse solicitors.
"There can be little doubt it will have contingency plans ready to go and has various options available.
"Be it a pan-EU tender, selling in only certain EU member states or devising a plan to start its own channel, they will be deciding how best to maximise the value of their product to ensure any revenue shortfall is minimised."
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.
However, 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 extra parts associated of a broadcast, a pub would need the permission of the Premier League.
It remains to be seen whether pubs could broadcast match action without using any of these Premier League "extras", such as just broadcasting from kick-off only and therefore avoid breaching the league's copyright.
By ensuring that its branding was on screen all the time, or including in-match graphics, the league may be able to claim pubs were in breach of this ECJ ruling on copyright.
"It's not a decision that the Premier League or its clubs wanted," Wolves chief executive Jez Moxey told BBC Radio WM after the ECJ ruling was made.
"The Premier League have been aware of the situation and the possibility of the judgement going against them for some time now and have been assessing how it will sell TV rights going forward.
"Football has shown itself to be a resilient business."
He said the Premier's League's financial model had been challenged by the ECJ ruling, and any future sales would need to take the court's decision into account.
"On the face of it, it looks like a blow for the Premier League and... broadcasters Sky and ESPN," said BBC sport editor David Bond.
But he said the Premier League had faced many regulatory challenges in the past and would find ways to get round the new situation.
"The League insists the ruling is not clear cut, pointing to a part of the judgment which appears to offer them copyright protection and requiring pubs to seek their permission if they wish to use foreign decoders," added our correspondent.
"It is a confused picture and it is now up to the High Court to try and interpret the judgment. Whatever happens the league is confident it is not about to suffer a major loss in TV income."
Sky has pumped billions into top flight English football since the league was founded in 1992, with the money given to clubs allowing them to buy some of the top names in the world.
The Premier League's television income from mainland Europe is about £130m, less than 10% of their total £1.4bn overseas rights deal.