Beer, and Football on TV

When a pub landlady, Karen Murphy, subscribed to a Greek broadcaster to show Premier League matches in her pub she was sued by Sky (who was licensed to show the matches in the UK) for “dishonestly [receiving] a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme” (s.297 Copyright Designs Patents Act 1988). This was one of the cases related to football broadcasting referred to the ECJ by the High Court.

This week the Opinion of the Advocate-General will be handed down. In advance of our blog carnival, due to begin after the release of the Opinion on 3 February 2011, we have summarised the key legal issues below.

The case concerns the activities of certain landlords who have contracted with satellite service providers based outside the UK whose broadcasts include Premier league football. These actions have been challenged by Sky and by the football associations, arguing that the decoder devices are illicit devices for the purposes of the Copyright Designs and Patents Act. The case is significant. While many of the arguments used may focus on technical legal points, ultimately what we have here is a clash between a traditional, territorial, intellectual property-based view of the European market and the internal market project.

The cases before the High Court were heard by two different judges and the questions referred to the ECJ differ in wording (this also reflects the fact that two linked but different provisions in the Act were in issue in the cases), but there are issues in common:
  1. The meaning of “illicit device” – the provisions in the Act are designed to deal with pirate decoders, that is decoder devices which have never been authorised by the service provider. Here, the decoders are legitimate in the sense that they are the authorised decoder for the service and is a subscription is being paid.
  2. The meaning of “broadcast” – this question is linked to the issue of an “illicit device” and the underlying question of how the European broadcasting market should be organised. Essentially, the question is, are there two broadcasts (that from the FA/Sky to the non-UK-based broadcaster, and that from the broadcaster to the pub) or one (back from the FA/Sky to the pub via the non-UK based broadcaster)?
  3. Can we use the parallel import arguments based on exhaustion and consent and found in other areas of intellectual property in EU law (both in the context of the free movement of goods and services, and in competition law) in this context? It is worth noting that the case law of the ECJ has distinguished between goods and services.
  4. In any event, are we concerned with services (that is the television programme) or with goods (that is the decoder cards themselves)?

The UK judgments
To read the original UK judgments see:
FA Premier League v QC Leisure [2008] EWHC 1411 (Ch)

The ECJ refused to allow an accelerated procedure in order to join a recent case dealing with very similar issues to the above case: see UEFA v Euroview Sport Ltd [2010] EWHC 1066 (Ch).


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