The two cases under review by the ECJ ( European Court of Justice ) Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd , reached an interesting stage today 3rd Feb when Advocate General Kokott, issued the following opinions, which in Euro-speak is an inital recommendation to the court on which way to rule. In the past the vast majority of cases have followed this recommendation so the current situation is certainly hopeful for and comes down firmly in favour of, the Pubs showing matches from European broadcasting sources other than Sky.
It will probably be a full year before the final ruling of the court but the advice certainly seems to line up with the rest of 'borderless trade' EEC regulations made in the past. The Advocate General has said that EU law should not prohibit live transmission of Football in Pubs using non Uk decoders, for example the Greek Nova card and decoder used by Karen Murphy in her pub. Further the advice states that 'territorial exclusivity' agreements relating to broadcasting of Football ARE contrary to EU law. So if the ruling follows this advice, as most commentators think it will, it will certainly change the way Pubs show football and Skys virtual strangle hold over them. The EU would look upon this as an illegal restriction of competition contrary to Article 81 of the EC Treaty.
Where does this leave the FA funding? Well it will certainly shake up the way Sports bodies sell broadcasting rights to European providers, but surely there would be more demand as the competition increases, so why would they lose out. Many would say that Murdoch has made enough out the Pubs, charging by rateable value sometimes in excess of £1500 a month, that is a LOT of pints of beer to break even, pubs are hardly making a living these days in most cases. The greedy footballers commanding £million a month will get even less sympathy.
AG Conclusions in full
252. I therefore propose that the Court answer the questions referred for preliminary ruling as follows:
1. Question 1 in Case C-403/08:
Being ?designed‘ or ?adapted‘ within the meaning of Article 2(e) of Directive 98/84/EC means the manufacture or modification of equipment with the intention of providing access to a protected service in an intelligible form without the authorisation of the service provider. Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, that device does not therefore become an ?illicit device‘ within the meaning of Article 2(e) of Directive 98/84 if it is used to obtain access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider.
2. Question 3 in Case C-429/08:
Article 3(2) of Directive 98/84 does not preclude a Member State from invoking a provision of national law that prevents use of a conditional access device in the event of breach of contractual agreements concerning the accessibility of programmes in certain Member States, following the provision of false names and/or addresses in the acquisition of the access device, or the use, for commercial purposes, of an access device intended for private or domestic use.
3. Question 4 in Case C-403/08:
(a) The question whether works have been reproduced in whole or in part must be answered by means of an interpretation of Article 2 of Directive 2001/29/EC.
(b) Acts of reproduction occur where frames of digital video and audio are created within the memory of a decoder, as those frames constitute part of the broadcast author‘s own intellectual creation.
(c) The display of a broadcast on a screen also constitutes reproduction.
4. Question 5 in Case C-403/08:
Transient copies of a work created on a television screen linked to the decoder box have independent economic significance within the meaning of Article 5(1) of Directive 2001/29, whereas transient copies created in a decoder‘s memory do not.
5. Question 6 in Case C-403/08:
A copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television screen and speakers to members of the public present in those premises.
6. Question 7 in Case C-403/08:
The right to communicate copyright works by satellite under Article 2 of Directive 93/83/EC includes the right also to receive and watch that broadcast abroad.
7. Questions 6 and 7 in Case C-429/08 and Questions 7, 8(c) and 9 in Case C-403/08:
(a) Freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic or private use also does not affect that conclusion.
(b) Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast.
(c) It is irrelevant for the purposes of the present references for preliminary rulings whether the provision of national law infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State.
8. Question 10 in Case C-403/08 and Question 8 in Case C-429/08:
Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, such licence agreements are liable to prevent, restrict or distort.
competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that such effects have actually occurred.