The recent judgment of the Court of Justice of the European Union (CJEU) in FAPL v QC Leisure has generated significant comment in the media and elsewhere: few judgments will generate such fevered anticipation and analysis in 2011 as this one. It was hailed as a victory for Karen Murphy, the pub landlady who bought a decoder card enabling her to show Greek broadcasts of FA Premier League matches in her pub rather than Sky’s and who was subsequently convicted of offences stemming from infringements of domestic copyright legislation. Whether it is as simple as that, however, remains to be seen.
In particular, as a result of the Court’s judgment there is a distinction to be drawn between private subscribers and those such as Ms Murphy who purchase a decoder card in order to show matches to the wider public. It is still unclear whether publicans are allowed to show Premier League games using a broadcast from another EU country: the Court held that the FAPL does own copyright in the anthem and logos used during broadcasts, and arguably can restrict their “communication to the public”, as the Copyright Directive puts it. This important issue, along with the other IP issues raised by the case, is dealt with in the accompanying post by Dr. Stuart Baran.
The rest of this piece focuses on the free movement and competition law issues raised by the judgment. Whilst the Court has displayed (once again) its firm pro-single market tendencies, looking unfavourably on the rigid partitioning of markets along national lines, the judgment is just as notable for what it does not say: in particular, the relatively narrow basis for its judgment contrasts with the approach proposed by the Advocate General (AG) which, had it been followed, would have been more worrying for owners of media content generally.
