By Richard Penfold
Sports rights holders, professional sports teams, TV broadcasters and their legal advisors will be considering the possible impact to the value of their rights after the judgment of the EU’s highest court, the European Court of Justice (ECJ) on 4 October 2011, on claims brought by the Football Association Premier League (FAPL).
FAPL runs the Premier League (PL), the leading professional soccer league competition in England, which is the most widely watched sporting competition in the world and also the world’s most lucrative soccer league.
FAPL’s shareholders are the 20 soccer clubs in the PL. Much of the PL’s success is as a result of FAPL’s sale of exclusive TV broadcast rights around the world on a country by country basis. It is this practice in the EU which has incurred the intervention of the EU authorities before and which was the subject of the latest decision by the ECJ.
The ECJ judgment concerned a number of cases brought by the FAPL against suppliers in the UK of Greek TV satellite decoder cards and boxes which enable reception of live PL soccer matches in the UK broadcast by the exclusive Greek broadcaster and also a number of pubs which screened those matches using these non UK decoder cards and boxes – at a cost lower than the cost of the service from the exclusive UK broadcaster, BSkyB.
In a decision which considered anti-trust, exclusive license arrangements and intellectual property rights, the ECJ decided that:
– the grant of exclusive satellite broadcasting licenses for one or more EU member states, which included provisions requiring the licensee not to sell decoder cards which enable viewing of PL matches outside its licensed territory, breached EU anti truest rules;
– UK legislation which made it unlawful to import and sell such decoder cards from other EU member states was in breach of EU law;
– transmission of broadcast of PL matches to customers in pubs included communication to the public of copyright works, including the opening video sequence, music and graphics. Communication of such copyright works without permission of the rights owner amounted to copyright infringement.
So what does this mean practically for the PL teams and their broadcasters?
Although the decision was much lauded as a victory for small pubs seeking to take advantage of costs differences in the EU, in reality, because showing PL matches in a pub will include the unauthorised communication of FAPL’s copyright works, the victory may in fact be a Pyrrhic one. As far as private individuals are concerned however, who are able to rely on private use defenses to copyright infringement, there is no legal obstacle to obtaining decoder cards from other EU member states to watch PL matches. Whether this will mean in the long term that FAPL will be able to set a higher licence fees, or indeed be forced to accept lower fees, when it renegotiates its licenses with broadcasters in EU member states, to reflect the fact the broadcasters will have the right to issue decoder cards outside their state, remains to be seen.
Mr. Penfold is a partner at Brown Rudnick. In the entertainment industry, he assists celebrities, authors, actors, musicians and sports players with image and brand rights protection, licensing and enforcement. He also handles IP matters related to film and music production as well as broadcast media. He can be reached at rpenfold@brownrudnick.com
