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.
Dr Stuart Baran
The CJEU and IP lawyers haven’t had an easy relationship in recent years: Jacob LJ’s pre-retirement salvo at the start of his judgment in L’Oréal v. Bellure betrayed the mixture of resignation and exasperation that seems to characterise many IP practitioners’ attitude to the recent CJEU, especially in respect of trade mark law. A recent judgment from the Court sees it confronting issues of copyright together with some of its more familiar “Euro” legal territory.
On 4th October, the CJEU handed judgment down in Premier League v. QC Leisure, following an Opinion from Kokott AG, on 3 February this year. The Court’s judgment was in response to questions relevant to the free movement of goods and services; exhaustion of rights; and copyright infringement. The points on free provision of services have been looked at in more detail in another post accompanying this one [LINK], and so here we concern ourselves with the IP-focussed parts of the judgment.
UK pubs – including the Portsmouth establishment of Ms Karen Murphy – had bought Greek decoder cards to give access to digital TV coverage of Football Association Premier League soccer matches. These were significantly cheaper than buying the same cards in the UK for use to show the games in Ms Murphy’s pub. The Premier League contended that the use of these Greek decoder cards, licensed for use in Greece, outside of that country infringed their copyrights. In the UK, this was held to be so, and Ms Murphy attracted a criminal conviction under s. 297(1) Copyright, Designs and Patents Act 1988 (CDPA88).
Football Association Premier League & Ors v QC Leisure & Ors (C-403/08); Karen Murphy v Media Protection Service (C-429/08)
The Court held 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.
A more detailed analysis of the ruling will be posted in due course.
The judgment and opinion are available here and the CJEU press release here.