Exclusive Country By Country Agreements For The Broadcast Of Premier League Football Matches Under Threat Following CJEU And High Court Rulings?

Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, Joined cases C-403/08 and C-429/08, 4 October 2011

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Football Association Premier League Ltd & Ors v QC Leisure &; Ors [2012] EWHC 108 (Ch), 3 February 2012 and Karen Murphy v Media Protection Services Ltd [2012] EWHC 466, 24 February 2012

Following recent rulings from the Court of Justice of the European Union ("CJEU") in two conjoined cases concerning the broadcasting of Premier League football matches in the UK using foreign satellite decoder devices, the High Court has overturned the criminal conviction of a pub landlord, Karen Murphy, and ruled on the compatibility of territorial exclusivity agreements with European Union ("EU") law.

The recent decisions, while disappointing for the Football Association Premier League ("FAPL") and BSkyB, (FAPL's exclusive licensee in the UK), are not unexpected following the CJEU's ruling that the use of foreign satellite decoder devices to broadcast live Premier League football is legitimate and not contrary to EU law. However, pub landlords may still be liable for copyright infringement if they broadcast on their premises football matches which include works of copyright such as pre-recorded match highlights, performances of anthems, logos and graphics.

THE FACTS

FAPL organises the filming of Premier League football matches and grants licences to broadcast the matches, on an exclusive territorial basis. The licence agreements between the FAPL and each licensee require the licensee to prevent their broadcast from being viewed outside of the licensee's territory. In order to do this, the licensees encrypt their broadcasts and supply decoder cards to their customers in their territory, thus allowing customers to view the matches only within their territory.

At the relevant time, BSkyB Ltd had exclusive rights to broadcast Premier League football matches in the UK. This meant that anyone wishing to view the Premier League games had to take out a subscription with BSkyB. However, in the UK, a number of restaurants and pubs had obtained foreign decoder devices, which allowed them to receive broadcasts from another Member State at a cheaper price.

The CJEU's ruling dealt with two sets of proceedings. The first proceeding was an action by FAPL against individuals and companies that supplied foreign decoder devices to pubs and restaurants. The second was an action brought by FAPL against several publicans, who had obtained the foreign decoder devices and used them to broadcast the matches to the public. One of these publicans, Ms Murphy, had received broadcasts of Premier League matches transmitted in Greece by a company called NOVA. She had been convicted of two offences under s.297(1) of the Copyright, Designs and Patents Act ("CDPA") in Portsmouth Crown Court on the ground that she had dishonestly received a programme included in a broadcasting service provided from a place in the UK with intent to avoid payment of a charge applicable to the reception of the programme. Ms Murphy appealed her conviction.

In both sets of proceedings, the High Court referred a number of questions to the CJEU and awaited a response before ruling in the UK cases.

THE ECJ RULING ON THE QUESTIONS

  1. Illicit devices under the conditional access directive

    Articles 3 and 4 of the Conditional Access Directive provide that Member States must take measures to prohibit "the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices". Illicit devices are defined in Article 2(e) as meaning "any equipment or software designed or adapted to give access to a protected service...

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