On October 4, 2011, the European Court of Justice (ECJ) delivered an important decision in a consolidated case dealing with broadcasting rights, competition, and European Union (EU)-wide intellectual property issues [Football Association Premier League and Others (C-403/08 and C-429/08)… a.k.a. the Karen Murphy case].
Several pub owners in the United Kingdom (UK) have been circumventing the exclusive license, which the Football Association Premier League (FAPL) has signed with BSkyB and ESPN (£1.78 billion for the rights to broadcast Premiership matches in the UK from 2010 to 2013). A Sky subscription that would allow public viewing of FAPL games would cost approximately £700*. The pub owners (including Karen Murphy) opted not to pay the high fees and instead purchased foreign satellite decoder cards and individual subscription cards from Greece, for a fraction (10%) of the Sky subscription cost.
Importantly, the ECJ found no justifications on grounds of public policy for such restrictive practices. On one hand, the Court found no intellectual property rights by means of EU-wide Copyright for football matches themselves (albeit still protectable under member state law), rather only found particular aspects of the broadcasts copyrightable, e.g. the FAPL anthem, highlights, and various graphics. For such protectable aspects of a broadcast, one still needs to seek permission from the rights’ owner prior to public viewing. On the other hand, such restrictive practices were not justified either on grounds of protecting sporting interests, such as attracting game attendance, as other means (i.e. “closed periods” during which contracting parties would not broadcast Premiership games to encourage attendance) may accomplish such goals in less restrictive fashion than complete preemption of cross-border services’ utilization.
The Court’s use of the “specificity of sport” Art. 165 of the Treaty establishing the Functioning of the European Union (TFEU) is significant. Practices in favor of sport organizations should not go beyond what is necessary to accomplish the goals pursued, and in any event the Court assumes a position where the balance generally should lean in favor of upholding fundamental EU Law principles.