EU/UK: ECJ advised to find football broadcasting rights in breach of Treaty

An opinion of Advocate General Kokott, an advisor to the ECJ, will offer encouragement to hotels, bars and clubs across the EU which would prefer to use foreign decoder cards to access foreign transmissions of domestic football matches (FA Premier League and ors v QC Leisure and ors; Karen Murphy and anr, Joined Cases C‑403/08 and C‑429/08, 3 February 2011). In the UK at least, purchasing such cards is considerably cheaper than taking out a subscription from the exclusive UK licensee of live broadcasts of English Premier League matches, BSkyB.

The claimants complained that the dealing in and use of such cards in the UK infringed their rights under UK copyright legislation. The defendants include suppliers of cards enabling the reception of non-Sky satellite channels and a number of pubs which screen live Premier League matches using non-UK cards. They responded that the case was not about pirate decoder cards because all the cards in issue had been placed on the market by the relevant satellite broadcaster. Instead, they argued that the case was about cross-border trade in lawful decoder cards and the cross-border reception of broadcasting services within the European single market: broadcasters had no right to interfere with cross-border reception in an effort to divide the single market into differentially priced zones and to restrict competition between the Premier league’s licensees in different Member States.

The English High Court referred the issues raised to the ECJ, but its provisional view favoured the defendants. In the view of the judge, underpinning the whole of the claim was the correct meaning of the expression “illicit devices”, dealing in which is prohibited by the Conditional Access Directive (98/84/EC). The judge thought that on a proper reading of the Directive, cards that had been placed on the market by a licensed broadcaster could not fall within the definition.

Advocate General Kokott agreed with the judge. Crucially, however, she opined that attempts to restrict the free circulation of lawful decoder cards within the EU was a restriction on the fundamental freedom to provide services under Article 56 of the Treaty on the Functioning of the EU.  Such a restriction could not be justified to protect the claimants’ intellectual property rights as it only covered the specific subject matter of those rights—their commercial exploitation. Those rights were thus exhausted when the cards were marketed in Greece.  As the Advocate General suggested, this reasoning could have implications for the restrictive marketing of other services in the EU, such as ebooks. 

The Advocate General also opined that the claimants’ exclusive licensing agreements were in breach of the competition provisions of Article 101 of the Treaty. 

While Article 56 thus appears to provide a defence to the copyright infringement claims, it is worth noting that, in the view of the Advocate General, the liability of the defendants under those claims may extend further than had been found by the trial judge. For example, the storage of single frames of broadcast video and audio in a decoder and the display of a broadcast on a television screen may amount to infringement. This view is consistent with the decision of the ECJ in Infopaq International v Danske Dagblades Forening (C-5/08, reported in Linklaters IP News, October 2009) and may resolve a number of conflicting decisions at first instance in England.

The ECJ usually—although not always—follows the Advocate-General’s opinion, which is thus a strong indication of the way in which the ECJ will finally rule.  The English High Court will apply the ECJ’s ruling in its final determination of the issues.

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