Summary of Advocate General’s Opinion

Post by Prof. Lorna Woods

There are two views of the law at war in this case. The first focuses on issues through the lens of intellectual property law – essentially territorial and technical. The other sees the world from the perspective of the need to create the internal market, so looking at a pan-European level and a more purposive approach to interpretation. The area is complex and politically fraught – that much is obvious from the number of directives already enacted which seeks to reconcile the competing claims. In this case, however, in the end the Advocate General suggested that the case be dealt with by reference to the fundamental freedoms: the basic building blocks of the internal market project.

Relevant EU law
The relevant law at EU level comprises:
  • Directive 98/84, Conditional Access Directive, aimed at preventing pirate decoders;
  • Directive 01/29, of the Information Society directive, which harmonises copyright in the digital age and provides two rights of relevance to this case: the reproduction rights; and the rights of communication to the public;
  • Directive 93/83 the Cable and Satellite Directive which deals with transfrontier broadcasts and aiming at preventing the threat of unauthorised broadcasts due to geographic restrictions on the scope of copyright protection due to copyright’s origins in national law, but also aiming to avoid broadcasters having to comply with multiple jurisdictions’ rules.
These directives exist against the backdrop of the Treaty freedoms – here free movement of goods and, centrally, freedom to provide services, as well as the competition provisions.

Questions referred
The questions referred from the various cases before the High Court were both technical and detailed and this summary will not deal with all of them, and certainly not to the same level of detail as in the national court references and the opinion. The main questions addressed were:
  1. was there an “illicit device” in the terms of the conditional access directive?
  2. whether there was an infringement of the right to control reproduction in the InfoSoc Directive (Article 2) by the temporary storage of frames of the transmission in the decoder memory and TV screen, or whether Murphy et al could rely on the exception which allows temporary storage for technical reasons (Article 5(1);
  3. whether there had been an infringement of the right to communicate the public (Article 3 InfoSoc Directive);
  4. whether the creation of copies in a decoder in the country of reception constitutes an infringement of the exclusive right to a satellite broadcast within Directive 93/83;
  5. whether the attempt to enforce territoriality constituted an infringement of either that the free movement of goods or the freedom to provide services and, if so, whether any such infringement was justified; and
  6. whether there had been any violation of the competition provisions in the Treaty.

The first point to note is that the fact that we are talking about football here does not exempt the agreements from review for their compliance with European law. The Advocate General highlighted the main issues as being whether there had been a communication to the public and the impact of the agreements on the free movement of services. Nonetheless, she dealt with the arguments in the order that they were raised by the questions referred by the High Court.

Is the decoder an “illicit device”?
The first question was whether a decoder, lawfully manufactured and marketed in Greece, became an illicit device for the purposes of the Conditional Access Directive by virtue of its importation into the UK. The Advocate General rejected this argument. Her view was that be decoder card in this case was specifically designed to allow access to the Greek broadcaster’s service, and was not “adapted” in the terms of the Directive by virtue of its importation into the UK. She added that legal certainty required that when criminal offences are to be imposed they should be defined clearly. The question then was whether the Directive precluded a member state from allowing the territorial restrictions. She concluded that this issue did not fall within the scope of the Directive.

Temporary storage and reproduction
The Advocate General addressed the question of whether temporary storage for technical reasons constituted reproduction under the Information Society Directive. She started by noting that the arguments were made on a British understanding of copying, which requires “substantial” reproduction; by contrast, in Infopag the ECJ found that copyright covers all parts of the author’s intellectual creation, although in that case words in isolation were not protected. Applying this, the Advocate General suggested that there was reproduction both in the territory storage in the decoder box and through the display on the television screen. The question was then whether either or both of these instances of reproduction could benefit from the exception in the Directive which allows temporary storage for technical reasons to allow the functioning of a piece of technology. Here, the Advocate General distinguished between the temporary storage in the decoder, which had no independent economic significance, from the display on the screen, which was the subject matter of the exploitation of the broadcasts.

Communication to the public
The Advocate General engaged in a long discussion of the legislative history and the previous case law relating to the provisions providing for the right of communication to the public, which enabled her to distinguish the current situation from the previous case law. She concluded that there had been no violation here.

As regards the Cable and Satellite Directive, the act of communication occurs where the signal is introduced into an uninterrupted chain of communication, which she – by contrast to the High Court in Murphy – suggested was Greece.

Free movement of goods
The fact that the Directives were found not to deal with the issues raised meant that the Advocate General had to turn to consider the Treaty freedoms. While the importation of decoder cards might seem to implicate the free movement of goods, the Advocate General determined that the main focus of the restrictions was on the free movement of services. She determined that the right to control access in this way constituted an impediment to the provision of services and therefore the question was whether this impairment was justified in the light of the need to respect intellectual property rights. Following previous IP case law, the question turned into an issue about the scope of the specific subject matter of the rights in issue. Two key point should be noted from the Advocate General’s analysis. First of all, she distinguished Coditel, interpreting that case to apply narrowly to its facts. Secondly, she distinguished between services which cannot be reused (such as a haircut) and those which can, such as the broadcasting signal. The latter category, she suggested, should be subject to the rule on exhaustion. In coming to this conclusion, she highlighted the need to ensure an internal market in informational goods. While the Advocate General defined specific subject matter of the right has been the commercial exploitation of the broadcasts, so as to allow charging to view, she emphasised that there is no EU right to be allowed to charge prices at a differential rate across Europe, rather the contrary was true.

Finally, the Advocate General dealt briefly with the arguments relating to anti-competitive agreements under Article 101 TFEU and concluded that an agreement which restored national divisions in trade between member states might be such as to frustrate the objective of creating the internal market and that there was no reason to treat the agreements in issue here in any different from other agreements intended to prevent parallel trade. In the same way as there was no justification to the infringement to the freedom to provide services, there was no justification here either.

In sum, the Advocate General proposed a revolution in the way European television markets are organised.

Read the full Opinion here.
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