Major defeat for Sky as Euro court rules for landlady in Premier League exclusivity battle

Joseph O'Halloran ©RapidTVNews | 04-10-2011

In what will surely be a landmark ruling for the broadcasting industry, the European Court of Justice has backed Portsmouth landlady Karen Murphy in her bid to show English Premier League football with a non-UK TV subscription.
The Court of Justice of the European Union has ruled that “a system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law.”

At the heart of the case, Murphy was taken to court for breach of copyright by using, like hundreds of pubs in the UK, a non-UK, that is non-BSkyB, satellite TV smart card to show Premier League football.
Yet in its judgment, the Court said 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 justifiedeither in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.
Furthermore, it added that 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. That is to say using a Greek satellite subscription with an appropriate decoder card, like Murphy did to view the Premier League games, is permitted.
However in a caveat that will almost certainly ensure that the case rumbled on, the Court added that the screening in a pub of football match broadcasts containing protected works requires the authorisation of “the author of those works.”
On this point, the Court noted that so far as justifying restrictions on the grounds of protecting intellectual property rights, the Premier League could not claim copyright in the matches themselves, as they could be considered to be an “author’s own intellectual creation” and, therefore, ‘works’ for the purposes of copyright in the European Union.
The UK’s licenced victuallers have long complained that Sky has treated them like a cash cow to be milked and that sports subscription fees are excessive. This they say has forced them to use non-UK subscriptions which are a fraction of the cost.
Sky successfully took legal action which led to Murphy being fined for being in breach of UK copyright law by screening content that was not delivered by the authorised broadcaster. Murphy then took her case to the European courts and in Ferbruary 2011 in a non-bidning judgement the EU’s Advocate General ruled it not illegal for pubs to show live Premier League (PL) matches from foreign broadcasters.

The judgement has serious ramifications for both the broadcaster, for whom football is the cornerstone of its profitability, and the English Premier League whose nature has been has been transformed, and whose leading teams’ enduring pre-eminence cemented, by TV rights cash.