European Court Rules Against FA Premier League Ban On Foreign Decoders

On 4 October, the Court of Justice of the European Union (the "European Court") ruled 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. A system of exclusive licences is also contrary to EU competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcast outside the Member State for which the licence is granted.

However, whilst matches are not 'works' enjoying protection under the Copyright Directive, copyright protection does extend to the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics. As such, the transmission of broadcasts of these protected works in a pub would constitute "communication to the public" within the meaning of the Copyright Directive, for which authorisation of the author of the works would be necessary.

The preliminary ruling of the European Court addresses important questions about free movement, competition law and copyright.

What is the background to this ruling?

The preliminary ruling came in response to a request by the High Court of England and Wales for clarity on the interpretation of EU law. The High Court referred a number of legal questions to the European Court about the compatibility of FAPL licensing arrangements with EU law. These arose out of two separate actions involving UK pubs that had sought to use foreign decoder cards to access live English Premier League football matches, thereby circumventing the higher prices charged in the UK for the service. The decoder cards had been issued by a Greek broadcaster to subscribers resident in Greece.

In each case, it was alleged that the actions of the suppliers/publicans breached copyright held by the Football Association Premier League ("FAPL"). FAPL's activities included licensing the broadcasting rights for Premier League matches, as well as organising the filming of matches and transmitting the signal to the broadcasters that have the rights for those matches.

The first case involved a civil action brought by the FAPL against four pub licensees and Greek suppliers of decoders and equipment. They were accused of using/distributing foreign decoder devices giving access to FAPL's services without authorisation, contrary to section 298 Copyright Designs and Patents Act 1998 ("CDPA"). The...