Football Broadcasting - ECJ Decision

In a case which may change how the Premier League chooses to structure broadcasting rights packages, on 4 October, the European Court of Justice (ECJ) ruled in favour of a pub landlady from Portsmouth, who was using a Greek decoder to screen Premier League football matches in her pub.

In January 2007, Karen Murphy was convicted for dishonestly receiving BSkyB's football coverage intending to avoid proper payment. She appealed against her conviction and a number of points were referred to the ECJ for guidance.

Ms Murphy's argument was that she was entitled to use the Greek decoder under the EU's single market principles which call for the free movement of goods and services throughout the EU. The Football Association Premier League (FAPL), which owns and markets the broadcasting rights to Premier League matches, argued that Ms Murphy had breached its copyright by screening the matches in her pub.

In February, an Advocate General from the ECJ gave her opinion that the infringement of the single market principle outweighed the protection of intellectual property rights achieved by exclusive agreements along national lines.

Adopting the sentiment of this opinion, the ECJ ruled: "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."

In addition, the ECJ made the following comments:

Performances of athletes are different from those of actors and musicians and, as a result, FAPL does not own copyright of whole matches but only in certain elements such as the Premier League anthem, the opening video sequence and FAPL produced clips showing highlights of other Premier League matches; Even if FAPL had copyright of the whole matches, outlawing the use of foreign decoders and the resulting arbitrary price differences between countries within the single market would be disproportionate to the aim of protecting these rights; Granting exclusivity as part of a...