Karen wins her case in ECJ

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Plymouth publican Karen Murphy has won her six-year battle against the Premier League in a much-anticipated European Court of Justice decision that will have significant implications for pubs in both the UK and Ireland as well as for BSkyB and the football association in the UK.

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5 October 2011

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In its judgement, announced recently, the ECJ ruled that pubs are entitled to show football games using foreign satellite decoders and do not have to restrict their purchase to those from Sky. The judgement effectively prohibits the restriction on the sale and use of decoder cards bought ‘abroad’.

The judgement followed a request by the UK Court of Appeal for clarification in the Karen Murphy case. She’d been fined nearly £8,000 after being taken to court by the Premier League for using a Greek decoder card and foreign satellite suppliers to show games in her pub, ‘The Red, White & Blue’.

According to the ECJ judgement, “National legislation which prohibits the import, sales or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified”.

It added, “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 renumeration for the holders of the rights concerned”.

According to the ECJ statement, "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."

This was the case with the present system of providing licences by country, “if the licence agreements prohibit the supply of decoder cards to TV viewers who wish to watch the broadcasts outside the member state for which the licence is granted”.

However, significantly, the ECJ also ruled that part of the televised football match at present is copyrighted such as the credits and theme tune of the Premier League, for example, so the full implications of the ruling remain in doubt as pubs accessing Premier League matches using a foreign decoder would still be doing so illegally if they screened Premier League branding or marketing material such as previews, pre-recorded clips showing highlights of recent Premier League matches and the opening video sequences or the Premier League anthem.

“The screening in a pub of football-match broadcasts containing protected works requires the authorisation of the author of those works,” stated the ECJ, adding, “By contrast, the matches themselves are not works enjoying such protection”.

This aspect is likely to be taken up and run with by The Premier League in their battle to maintain income, arguing that this permits it to retain control of where live games can be broadcast.

The ruling will now return to the High Court in the UK.

 

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