Brussels, 04/10/2011 (Agence Europe) - On Tuesday 4 October, the European Court of Justice ruled that the licensing system for the broadcasting of football matches that gives broadcasters geographical exclusivity on a member state-basis to prevent television viewers from watching the matches using a decoder card in another member state via satellite is contrary to EU law, but the showing of football matches “containing protected works” in bars and restaurants requires the authorisation of the author of those works.
The Football Association Premier League (the FAPL) runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches. It grants broadcasters, under an open competitive tender procedure, an exclusive live broadcasting right for Premier League matches on a territorial basis. As the territorial basis generally corresponds to a single member state, television viewers can watch only the matches transmitted by the broadcasters established in the member state where they reside.
The disputes giving rise to the present cases (C-403/2008 and C-429/2008) concern attempts to circumvent that exclusivity. Certain pubs in the United Kingdom have begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom. The FAPL takes the view that such activities undermine the exclusivity of the television broadcasting rights and the value of those rights and sought to bring them to an end by means of legal proceedings. The British legal system, asked to rule on the two cases, referred to the Court of Justice over interpretation of several points of EU law in this connection (see EUROPE 10465).
In the ruling, the court found 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 either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums”. It cannot be justified even if the decoder cards were obtained fraudulently using false names or false addresses or are used for commercial purposes despite the contract stipulating that they are only for personal use. In this connection, the court states that “the FAPL cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author's own”. “Even if national law were to confer comparable protection upon sporting events - which would, in principle, be compatible with EU law - a prohibition on using foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned”, explains the court.
The court ruled: “Payment by the television stations of a premium in order to ensure themselves absolute territorial exclusivity goes beyond what is necessary to ensure the right holders appropriate remuneration, because such a practice may result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.”
For the same reason, the exclusive licensing systems fall foul of competition law because they prevent the holder of licences from providing decoder cards to people wanting to watch football matches outside the member state where the licence was granted and this is a restriction on the right to provide services across borders, granting each broadcaster exclusive territorial rights in the area covered by the licence, thus eliminating any potential competition and restricting markets to national borders.
The Court ruled that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as “works” protected by copyright, but not the matches themselves. This means that the screening in a pub of “broadcasts containing those protected works, such as the opening video sequence are a 'communication to the public' within the meaning of the Copyright Directive, for which the authorisation of the author of the works is necessary”. (FG/transl.fl)