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Broadcasting Rights Reshaped: Pub Landlord Wins Case on broadcasting rights

The Court of Justice of the European Union (ECJ) has delivered a landmark ruling which could substantially change the business models of broadcasters and content providers and reshape the way that live sports events and other media events are offered to consumers across Europe.

The ECJ held that the English Football Association Premier League (FAPL), the body that licenses the broadcasting rights for English Premier League football matches, may not prohibit television viewers in one country from using decoder cards bought and imported from broadcasters in another country.

The ECJ's ruling was issued on October 4, 2011. The key points in the judgment are as follows:

-An exclusive broadcasting agreement is not in itself anti-competitive (Coditel II, C-262/81). Therefore, a holder of broadcasting rights may give exclusivity to a single licensee for one or several Member States.

-However, any contractual provision aimed at conferring absolute exclusivity in a national market and making the penetration of that national market difficult for competitors from outside the territory contravene common market principles and the EU prohibition on anti-competitive agreements, in Article 101 TFEU.

- The contracts concluded by the FAPL with broadcasters were restrictive by their very nature (or ”object“) and so could not qualify for exemption from Article 101 TFEU. Therefore, it is probable that the FAPL will be obliged to modify all the contracts in their entirety, which will mean renegotiating terms with broadcasters.

-The restrictions imposed by the FAPL could not be justified on the basis that they protect the rights of the intellectual property holders by ensuring that they are appropriately remunerated. EU law provides only for rights holders to be ”appropriately“ remunerated, and the payment of a premium by broadcasters to secure exclusive territorial rights goes beyond what is necessary, resulting in artificial price differences between national markets that are irreconcilable with the fundamental EC Treaty aim of creating an internal, common market.

- National legislation (such as the Act) that makes it unlawful to import, sell and use foreign decoding devices that give access to broadcasts from another Member State constitutes ”a restriction on the freedom to provide services “ and is prohibited by Article 56 TFEU.

-There is no copyright in sports matches themselves but there is copyright in the opening video sequence, Premier League anthem, pre-recorded highlights and onscreen graphics, which can be considered ”works“. ..

- The screening of Premier League matches in pubs and bars constitutes ”communication to the public“ within the meaning of the Copyright Directive, and the authorisation of rights holders is therefore necessary in order to show the works."

More details can be found here.