Murphy: Can Broadcasting Copyrights Hinder the Internal Market?

There is definitely an apparent conflict between free movement principles and the territorial nature of intellectual property rights. The reason is pretty clear. On one side, the common market project pursues the scope of building an area of free trade without barriers from state to state. On the other side, instead, the protection of intellectual property rights is still very much linked to their territorial nature.
This dichotomy is particularly evident when copyrights are involved. Copyrights, differently from industrial property rights, do not protect the idea in itself but its expression. In order to do so, copyrights grant an exclusive right to exercise control over the copying or the exploitation of the work for a certain period of time, up until when the work enters into the public domain. When copyrights on broadcasting TV programs is at stake, like in this case, the situation gets extremely sensitive.
Can the use of foreign decoder cards in the United Kingdom to access foreign satellite transmission of live Premier League football matches constitute an infringement of the copyrights of the English broadcaster of the Premier League within the UK territory? If yes, can this hinder the internal market?
In order to answer this question, Advocate General Kokott based her reasoning on the scope of internal market and on the principle of exhaustion.
As far as the internal market is concerned, the A.G. states that “the possibility, demanded by FAPL, of marketing the broadcasting rights on a territorially exclusive basis amounts to profiting from the elimination of the internal market”. In other words, the A.G. is saying that the internal market is hindered by the broadcasting partitioning of it and that, therefore, an internal market of broadcasting has to be pursued.
Having said this, A.G moves on saying that the case, in actual fact, falls within the principle of exhaustion of rights to goods.
Copyrights, as already mentioned, give to the owner the rights over the copy and the exploitation of the work for a certain period of time. When is the exploitation of the work consumed?
According to A.G., already in the optic of a common market of broadcasting, the exhaustion of the the copyrights happens through the charge of the decoder card. FAPL in fact “cannot prevent the use of cheaper decoder cards from another MS”.
The approach of the A.G. is innovative and is destined to trigger comments and discussion. Now we have just to wait the decision of the Court. However, if the A.G.’s opinion will be upheld, this case be definitely considered a milestone in the achievement an the internal market of broadcasting.

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