The owner of the English Premiership, Football Association
Premier League (FAPL), has sued a number of pub operators for
buying decoding equipment to use to show matches for around £800 a
year rather than the £6,000 a year they would have to pay UK
licensees such as Sky Sports.
FAPL claims that the showing of the foreign feeds infringes its
copyright, and that the selling of such cards is also a copyright
infringement.
FAPL sued decoder system dealers QC Leisure and AV Station and
six publicans all of whom have argued in the High Court that the
European Union's single market mandates the free movement of goods
like decoder cards. They claim that to stop them trading in and
using them would be contrary to EU laws governing free trade.
The publicans and equipment sales companies have asked the court
to refer the case to the European Court of Justice to decide on how
the copyright and free trade laws should interact. FAPL has said
that any decision against them could throw the entire business of
big money sport into doubt.
"In my judgment this case raises very serious questions which,
as both parties have urged upon me, are of the greatest importance
to the European single market," said Mr Justice Kitchin in his High
Court ruling.
"The claimants submit the defendants' case is effectively a
challenge to the way in which sports (and indeed virtually all)
broadcast rights are licensed in the EU. The defendants say there
are millions of expatriate workers in Member States who want to
watch satellite television from their own country and that the
claimants are seeking to bolster a system of barriers against the
free circulation of decoder cards between Member States to the
commercial advantage of programme providers and broadcasters who
want to maintain price differentials between the markets in
different Member States, to the serious detriment of consumers as
regards both price and choice," he said.
"Moreover, they continue, the whole trend of EC Directives in
this field has been to try and create a single audiovisual area – a
process which the claimants are trying to frustrate. These rival
arguments raise serious policy issues and I believe it to be highly
desirable they should be authoritatively decided by the Court of
Justice as soon as possible," said Mr Justice Kitchin.
He recognised that the two sets of laws – copyright and trade
laws – were in opposition, and that those laws had sufficient
pan-European consequences that a reference to the ECJ was
desirable.
"The issues in this case have at their heart the proper
interpretation of a number of instruments of Community legislation
concerning the cross-border broadcasting of television programmes
by satellite," said Mr Justice Kitchin.
"[The banning of cross-border transmission by rights holders
such as football leagues] creates a tension with the concept of a
Community audiovisual area and the principles of an internal market
without frontiers, and it is this tension which is reflected in the
multitude of claims and defences deployed in this case. I have made
such findings as I can. But I believe the issues which I have
identified and upon which the assistance of the Court of Justice is
sought are so fundamental that they should be considered as a whole
by the Court at the earliest opportunity," he said.
Last December publican Karen Murphy was convicted in UK law for
using Greek decoders to show games, but her case has now also been
referred to the ECJ for deliberation on the EU law aspects of
it.
Observers say that it could be a year before the ECJ rules on
the case, and a referral is not a guarantee that it rules on the
issue at all.
Editor's note, 02/07/2008: This story has
been amended since it first appeared to correct a reference to the
claimant's identity. We apologise for the error.
