Premier League games can be shown on foreign decoders
- 4 October 2011
- From the section Business
A pub landlady has won the latest stage of her fight to air Premier League games using a foreign TV decoder.
Karen Murphy had to pay nearly £8,000 in fines and costs for using a cheaper Greek decoder in her Portsmouth pub to bypass controls over match screening.
But she took her case to the European Court of Justice (ECJ).
The decision could trigger a major shake-up for the Premier League and its current exclusive agreements with Sky Sports and ESPN, and pave the way to cheaper viewing of foreign broadcasts for fans of top-flight English games.
However, whereas the decision opens up opportunities for individuals to watch overseas broadcasts at home, it remains unclear whether in future games can be shown in pubs using foreign decoders and broadcasts, as the ruling also threw up a number of copyright issues.
The ECJ said national legislation, which banned the use of overseas decoders, could not "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".
But the Premier League's said the ECJ's answers to the High Court's questions were "complex".
"We are pleased that the judgment makes it clear that the screening in a pub of football-match broadcasts containing protected works requires the Premier League's authorisation," the league said.
Only Sky and ESPN are currently authorised by the Premier League to make such broadcasts.
"I'm relieved, very relieved," Mrs Murphy told BBC Radio 5 live.
"It has been a rollercoaster, highs and lows, nerves... It has been a strange time and I am glad it is coming to an end."
She added: "I feel I have taken on the Premier League and Sky."
Mrs Murphy said she no longer had a decoder box in her Red, White and Blue pub and would wait for the "stamp of approval" from the High Court before reinstating it.
The ECJ findings will now go to the High Court in London, which had sent the matter to the ECJ for guidance, for a final ruling.
However, it is unusual for a member state High Court to pass a different judgement from one provided by the ECJ.
"In practical terms, the Premier League will now have to decide how it wishes to re-tender its rights," said sports media lawyer Daniel Geey of Field Fisher Waterhouse solicitors.
"There can be little doubt it will have contingency plans ready to go and has various options available.
"Be it a pan-EU tender, selling in only certain EU member states or devising a plan to start its own channel, they will be deciding how best to maximise the value of their product to ensure any revenue shortfall is minimised."
The judges said the Premier League could not claim copyright over Premier League matches as they could not considered to be an author's own "intellectual creation" and, therefore, to be "works" for the purposes of EU copyright law.
However, the ECJ did add that while live matches were not protected by copyright, any surrounding media, such as any opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics, were "works" protected by copyright.
To use any of these extra parts associated of a broadcast, a pub would need the permission of the Premier League.
It remains to be seen whether pubs could broadcast match action without using any of these Premier League "extras", such as just broadcasting from kick-off only and therefore avoid breaching the league's copyright.
By ensuring that its branding was on screen all the time, or including in-match graphics, the league may be able to claim pubs were in breach of this ECJ ruling on copyright.
"It's not a decision that the Premier League or its clubs wanted," Wolves chief executive Jez Moxey told BBC Radio WM after the ECJ ruling was made.
"The Premier League have been aware of the situation and the possibility of the judgement going against them for some time now and have been assessing how it will sell TV rights going forward.
"Football has shown itself to be a resilient business."
He said the Premier's League's financial model had been challenged by the ECJ ruling, and any future sales would need to take the court's decision into account.
"On the face of it, it looks like a blow for the Premier League and... broadcasters Sky and ESPN," said BBC sport editor David Bond.
But he said the Premier League had faced many regulatory challenges in the past and would find ways to get round the new situation.
"The League insists the ruling is not clear cut, pointing to a part of the judgment which appears to offer them copyright protection and requiring pubs to seek their permission if they wish to use foreign decoders," added our correspondent.
"It is a confused picture and it is now up to the High Court to try and interpret the judgment. Whatever happens the league is confident it is not about to suffer a major loss in TV income."
A spokesman for Sky said they were considering the implications of the ECJ ruling and how it may affect the way Premier league football rights were sold across Europe in future.
The broadcaster has pumped billions into top flight English football since the league was founded in 1992, with the money given to clubs allowing them to buy some of the top names in the world.
The Premier League's television income from mainland Europe is about £130m, less than 10% of their total £1.4bn overseas rights deal.
However, the court decision could have a significant repercussions for other rights holders outside of sport, with life potentially getting more difficult for the film industry, which also sells its product on an country-by-country basis.
Smithfield Partners is a law firm which represents David Richardson of QC Leisure (a digital box supplier), and SR Leisure Limited (a publican), all of whom were defendants to a civil action brought by the Premier League.
"We consider this ruling to be a significant step in creating fair competition across the internal market, reducing artificially inflated prices which vary across member states," said the firm's Martin Ochs.
"It also provides some clarity in relation to the rights of businesses within the EU to broadcast live football. In fact this decision is likely to have far reaching implications beyond that of football."
The legal battle kicked off six years ago, when Mrs Murphy was taken to court for using the Nova firm to show matches at the Red, White and Blue pub.
Using the Greek service, she had paid £118 a month, rather than £480 a month with the official broadcaster.
Licensed broadcasters encrypt satellite signals, with subscribers needing a decoder card to access them.
Mrs Murphy took advantage of an offer to UK pubs to use imported cards.
In February, an ECJ advocate general said this was in line with the aims of the EU single market - a border-free zone for goods and services.
The Premier League has already taken action against two suppliers of foreign satellite equipment and a group of pub landlords who used imported decoding equipment to show English Premier League games and avoided the commercial premises subscription fees for Sky.