Abstract
The FA Premier League (“FAPL”) runs Premier League football in England. FAPL’s activities include commercially exploiting the associated broadcasting rights. In maximising the value of the broadcasting rights to its member clubs, FAPL grants licences in respect of these rights for live transmission on a territorial basis and for three-year terms. In order to protect the territorial exclusivity of all broadcasters, they each undertake, in their licence agreement with FAPL, not to supply decoding devices that allow their broadcasts to be decrypted for the purpose of being used outside the territory for which they hold the licence. In the UK, certain restaurants and bars began to use foreign decoding devices to access Premier League matches. FAPL took the view that such activities were harmful to its interests because they undermined the exclusivity of the rights granted by licence in a given territory and hence the value of those rights. Consequently, FAPL and others brought, in Case C-403/08, what they consider to be three test cases before the High Court in England and Wales. Two of the actions were against suppliers (QC Leisure, AV Station etc.) to public houses of equipment and satellite decoder cards that enabled the reception of programmes of foreign broadcasters, including NOVA. The third action was brought against the operators of four public houses that screened live Premier League matches by using a foreign decoding device. In Case C-429/08, Ms Murphy, the manager of a public house in Portsmouth, procured a NOVA decoder card to screen Premier League matches. Ms Murphy was subsequently convicted of two offences under the Copyright, Designs and Patents Act 1988. Ms Murphy brought an appeal by way of case stated before the High Court of Justice, taking a position similar to that adopted by QC Leisure. In both proceedings, the High Court in England and Wales decided to stay proceedings and to refer a series of questions to the CJEU for preliminary ruling. The referred questions, the ruling of the CJEU and its implications are discussed below.
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Notes
- 1.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011.
- 2.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 32–34. It should be noted that EPL invited broadcasters to tender on other territorial basis, including regional or global, but that broadcasting rights were in practice sold on a national basis since broadcasters normally operate on the market of a single market.
- 3.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 34–35.
- 4.
The BSkyB/ESPN-partnership had paid the substantial sum of £1.78 billion for the exclusive UK broadcasting rights from 2010 to 2013.
- 5.
It is important to note that the remarkably high fees were only set for places of public viewing, whereas the private subscriptions were much more reasonable and closer to individual subscriptions in mainland Europe. Per Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 129–130, rights holders may differentiate between public viewing subscriptions and private purposes’ viewing. Indeed, the public viewing fees were a considerable revenue-generator for Sky, and partly allowed for the billion-pound FAPL license. See generally Harris 2011.
- 6.
Sections 297 and 298 of the Copyright, Designs and Patents Act 1988.
- 7.
On delivery of the judgment in Case C-403/08, the resumption of the hearing of the trial occured on 3 February 2012 in FA Premier League and others v QC Leisure and others [2012] EWHC 108 (Ch). On the delivery by the CJEU of its judgment in C-429/08, the resumption of Murphy’s appeal occurred on 24 February 2012 in Murphy v Media Protection Services Ltd [2012] EWHC 466 (Admin).
- 8.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 96 and 98. See generally Szyszczak 2012.
- 9.
The CJEU pontificates at Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 96 that “[FAPL] cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works”. Two paragraphs later the CJEU declares that football matches are “subject to rules of the game, leaving no room for creative freedom for the purposes of copyright”.
- 10.
The CJEU recognised that domestic law may deem it appropriate to afford intellectual property protection over such sporting competitions, triggering perhaps cases where national intellectual property laws will conflict with EU Law. Concurrently, the CJEU still allows for EU-wide copyright protection over sections of matches, which refer to select video sequencing, the Premier League Anthem, highlights, and various graphics. And it is exactly for those protectable rights that a public viewing operator needs to seek permission prior to use/public viewing from the right owner, who may approve the expansion of such communication to a new public for a price. See further Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 149 and 197.
- 11.
Szyszczak 2012, 174.
- 12.
FA Premier League and others v QC Leisure and others [2012] EWHC 108 (Ch), paras 56–90.
- 13.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 68–74, interpreting Directive 98/84/EC, Conditional Access Directive [1998] OJ L 320/54.
- 14.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 208–210, interpreting Directive 93/83/EEC, Satellite Broadcasting Directive [1993] OJ L 248/15.
- 15.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 82.
- 16.
See for example Case 352/85 Bond van Adverteerders et al. v Netherlands [1988] ECR 2085, paras 21–22 and Case C-288/89 Stichting Collectieve Antennevoorziening Gouda et al. v Commissariaat voor de Media [1991] ECR I-4007, paras 17–18. See also Joined Cases C-34–36/95, Konsumentombudsmannen v. De Agostini et al. [1997] ECR I-3843, paras 28–36 (regarding the protection of the”transmitting state principle” through legislative acts).
- 17.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 85–89.
- 18.
The CJEU has established that an individual can rely upon the free movement of services against a private entity when it “collectively regulates” the market; see Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet et al. [2007] ECR I-11767, paras 97–98. It is, however, yet unclear whether Article 56TFEU can also be relied upon in other situations, i.e. whether it enjoys” full horizontal direct effect”. See generally Barnard 2010, 234–235.
- 19.
Szyszczak 2012, 169.
- 20.
Note the comments of Hyland 2012, 12: “While the [Murphy] ruling has been interpreted by some commentators as being firmly in favour of the defendants, it is probably fairer to say that the copyright component…of the judgment went in FAPL's/licence holders' favour. In essence, following the Court of Justice's ruling, pub owners still require the consent of the rightholder before they broadcast copyright works to customers on their premises.”
- 21.
See, for instance, s16(1) and (2) of the Copyright, Designs and Patents Act 1988, (the national law applicable to the facts in Murphy). Moreover, copyright holders may attempt to engage in all-encompassing enforcement action and introduce new means of monitoring potential infringers. This could be pursued via random visits, e.g. by Media Protection Services staff, at places of public accommodation or via contractual agreements with broadcasters, which may be able to introduce GPS technology or other means to identify the decoder receiving the satellite feed, and whether it reaches a location of public viewing or personal use.
- 22.
Described in Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 32–41.
- 23.
The attention given this matter was “limited” but not “undue” and was mainly down to the manner in which the English High Court of Justice had framed the referred questions referred. See Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 54. However, it would not have been out of character for the CJEU to take the liberty of addressing the validity and interpretation of the consumer contract, notwithstanding that it had not being asked to do so by the referring national court. See further Anderson and Demetriou 2002, 312–314.
- 24.
To reiterate, Article 56TFEU does not in principle apply to individual agreements.
- 25.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 137–138, citing Case 262/81 Coditel SA et al. v Ciné-Vog Films SA et al. (Coditel II) [1982] ECR 3381, para 15 and Article 1(2)(b) of the Satellite Broadcasting Directive.
- 26.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 141.
- 27.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 141–142.
- 28.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 139, citing Joined Cases C-468/06 to C-478/06 Sot Lélos kai Sia et al. v GlaxoSmithKline AEVE Farmakeftikon Proionton [2008] ECR I-7139, para 65 and Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services et al. v. Commission et al. [2009] ECR I-9291, paras 59 and 61.
- 29.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 140.
- 30.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 143.
- 31.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 145.
- 32.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 105–124 and 145.
- 33.
Case C-309/99 Wouters [2002] ECR I-577.
- 34.
Case C-519/04 P Meca-Medina [2006] ECR I-6991, paras 41–42 (more precisely to anti-doping rules), citing Case C-309/99 Wouters [2002] ECR I-577, para 97.
- 35.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 105–124.
- 36.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 146.
- 37.
See generally Parrish and Miettinen 2008.
- 38.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 101.
- 39.
Case C-325/08 Bernard [2010] ECR I-2177, para 40.
- 40.
Pijetlovic 2010, 858: (characterising the first utilisation of the Lisbon Treaty-acknowledged EU competency in sport as symbolic and unnecessary, yet significant of an important potential trend to consider the specificity of sport as dispositive (“…could prove just enough to influence the outcome in certain cases…”) towards resolution of entangled cases in the sport industry where fundamental principles of EU Law will continue to conflict with sport (business) considerations).
- 41.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 100–102.
- 42.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 115: (“…here such a premium is paid to the right holders concerned in order to guarantee absolute territorial exclusivity…to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference…are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market…”).
- 43.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 108–110.
- 44.
Directive 89/552/EEC, The Television without Frontiers Directive [1989] OJ L 298/23.
- 45.
Note the discussion at Chap. 16 of this volume.
- 46.
See generally Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 134–144.
- 47.
See generally Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 145–146.
- 48.
- 49.
See further Stothers 2012.
- 50.
In addition, there is the comparative of the Dutch Eredivisie, where the subscription channel is available on every platform on a non-discriminatory basis. In the UK, that would mean a subscription PL TV channel being available on each of the Sky, Virgin, BT Vision, Top Up TV and FreeView platforms.
- 51.
Such as the Bundesliga, Premiera Division/La Liga, Dutch League, Il Campionato, and the French League.
- 52.
See the blog opinion of Geey 2011.
- 53.
As suggested by Moody-Stuart 2011.
- 54.
Note further Demetriou 2011: Demetriou, who represented Karen Murphy in the CJEU case, agreed that there probably would not be a competition law issue to sole licensing according to language market targets and stated: “…what happens at the moment is that Nova provides commentary in both English and Greek. That’s why it’s so attractive to people like Karen Murphy. I don’t think there would be a competition objection to removing that service.” It was explained that Murphy held a domestic license with Greek broadcaster Nova as opposed to a commercial one, as commercial licenses in the Greek market required an assessment of the premises in which the license was to be used. This could not be carried out in Murphy’s case since her pub was in Southsea, near Portsmouth.
- 55.
- 56.
Cf Szyszczak 2012.
- 57.
Note Daily Mail 2011.
- 58.
For example Balkan leagues, Northern European Leagues, Central or Eastern European Leagues.
- 59.
See generally Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 112–113.
- 60.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, para 110. See also Advocate General Kokott’s opinion in Murphy, delivered on 3 February 2011, paras 160, 186 and 202.
- 61.
Naturally, pub owners may subscribe to a foreign-language operator (NOVA provided commentary in both Greek and English), if the price is reasonable, and simply mute the broadcast for their pubs’ clientele. Some may even complement the foreign live video feed with live radio broadcast of the same match, if available in their region. Any video-audio discrepancies and signal delays may be well recompensed by the pub manager’s savings.
- 62.
Where, for example, the FAPL might attempt to go for maximisation of European media operators’ outreach through regional broadcasters wishing to expand, such as NOVA. Whilst the overall cost of broadcasting fees would initially decrease, the fess might possibly increase progressively to yield a higher profit margin for FAPL.
- 63.
Where, for example, FAPL and other leagues/sports and entertainment organisations might seek to offer more customised packages, languages’ combinations, regular and postseason competitions, different delivery systems, etc. so that the partnership between FAPL and broadcasting networks may lead to attracting more subscribers.
- 64.
See further Sports Business Daily 2011b. It is useful to note that in the same issue, FAPL club Wigan Athletic Chair Dave Whelan, was quoted commenting on Liverpool discussing the possibility of clubs individually selling overseas television rights: “If this happened, it would lead to the destruction of the Premier League, I have no doubt about that”. As quoted in Sports Business Daily 2011a.
- 65.
One exception has been Szyszczak 2012.
- 66.
See generally Svantesson 2004.
- 67.
See generally Guerrero 2011.
- 68.
Note the comments of Fejø 2012.
- 69.
Consider, alternatively, a more than twenty-year case law history on gambling services and state monopolies, during which the CJEU consistently deferred the most crucial aspects of protectionism and preservation of monopoly power over state-aided gaming operators to national courts. See generally Kaburakis and Rodenberg 2011, 2012.
- 70.
Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others; and Karen Murphy v Media Protection Services Ltd, 4 October 2011, paras 90–133 (revolving around the key finding of such legislation as incompatible with EU law in para 125).
- 71.
- 72.
A point made consistently in Kaburakis, Lindholm and Rodenberg 2012.
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Lindholm, J., Kaburakis, A. (2013). Cases C-403/08 and C-429/08 FA Premier League Ltd and Others v QC Leisure and Others; and Karen Murphy v Media Protection Services Ltd, 4 Oct 2011. In: Anderson, J. (eds) Leading Cases in Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-909-2_17
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