The news that Karen Murphy’s appeal has been upheld by the European Court of Justice (ECJ) has been welcomed in newspapers and pubs throughout the land. Of course they are all right to celebrate the fact that her criminal conviction has been overturned. It was always a nonsense that using a satellite decoder purchased quite legally in one EU country could be a criminal offence in another. If, however, the public mood of celebration comes from a belief that pubs can now subscribe to Greek or even Bulgarian satellite services broadcasting Premiership (FAPL) to screen matches not broadcast on Sky or ESPN or, more likely, to obtain the same content at a much reduced price, then we should prepare to be disappointed.
The decision of the ECJ is quite unequivocal when it comes to the sale of satellite decoder equipment, “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”. This should surprise nobody and is entirely in accordance with the ECJ Advocate General Kokott’s opinion earlier this year in the same matter. The court even considers the position of the unfortunate broadcaster caught between FAPL and the customer which, until now, has had to agree to limit its service to a certain country even though, apparently, the customer can take their subscription and use it anywhere in the EU so, “a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.”
These, though, weren’t the only matters for consideration by the court which was asked to answer nine related questions. Several of these questions relate to the extent of the copyright that exists over television broadcasts of football matches. The match itself, it seems, cannot be subject to copyright, “as those sporting events cannot be considered to be an author’s own intellectual creation”. However, virtually everything else that is added to the broadcast including “the opening video sequence, the Premier League anthem, prerecorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright”. It is impossible to imagine football matches going out on TV without this copyright content.
The final conclusion, then, is that anyone who wishes to broadcast (as opposed to view) copyright material, and that includes pub landlords, must obtain the permission of the copyright owner: “the Court decides that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary”.