Wednesday, 5 October 2011

Are consumers free to shop for cheapest TV decoders in the EU regardless broadcasting licenses? - ECJ in case Football Association Premier League and Others

4 October 2011: ECJ case C-403/08 Football Association Premier League and Others

Last post for today concerns the ECJ ruling of 4 October 2011 in the case C-403/08 Football Association Premier League and Others. It's strictly speaking not a consumer law case, but it will influence also consumers so it's important to briefly mention it. 

Premier League is a professional football league competition for football clubs in England (that explanation shouldn't be necessary, but I'm from time to time surprised by someone who is completely not familiar with sport environment). All of the Premier League matches are filmed, however, the broadcasting thereof is strictly limited, i.e. broadcasting rights for live transmissions are licensed and given to various parties on a territorial basis and for a certain time only (under an open competitive tender procedure, which means that the higher bidder wins). As a result, it's difficult to enjoy a good English football game unless you go to a pub that has a license for broadcasting them or you buy/rent a decoder for the private channel that got the license to broadcast these games yourself. All in all, it's a costly business. In order to make sure that the broadcasting rights are being observed, broadcasters are obliged to ensure that their transmission are being encoded so that they cannot be received outside the territory for which the license was granted and they are prohibited from supplying decoding devices that could be used outside that territory. 

In the past few years in the UK certain bars and restaurants have begun to use foreign decoders to access Premier League matches. The foreign decoders allow access to a satellite channel broadcast in another Member State, the subscription to which is less expensive than the English subscription. The decoders in question were manufactured legally but used in unauthorised manner, since they were never supposed to leave the territory of a given Member State. This, of course, undermines the exclusivity of rights granted by licence in a given territory and the value of those rights. It doesn't come as a surprise that a lawsuit was brought against some owners of pubs and restaurants who used this practice in the UK. The English law prohibited such practices, but the case was directed to the ECJ in order to establish whether such a prohibition was not contrary to inter alia the freedom of provision of services in the European Union. Indeed, it was declared that this was the case. 

The ECJ declared that national laws which prohibit the import, sale or use of foreign decoders are contrary to the freedom of provision of services (Par. 125). This restriction cannot be justified neither by the objective of encouraging the public to attend football stadiums nor by an objective of protecting intellectual property rights. This means that consumers all over Europe may now purchase foreign decoding devices and use them instead of their own ones to receive cheaper services. 

It is unclear, however, whether the same would be applicable to owners of restaurants and bars, since then there are certain copyright issues to be taken into account. For example, the ECJ determined that live football games transmissions are not copyright protected in the EU law (Par. 96-99), but such protection applies to transmission of pre-recorded films showing highlights of recent games or the opening video sequence of the programmes, graphics etc (Par. 149). The ECJ also stated that national legislations are allowed to confer protection (also of copyrights) on sporting events (Par. 102-105). 

There are many other issues that might be interesting to consider, e.g. how this judgement relates to broadcasts of programmes other than football games, or whether and how the permission of the party granting licenses is to be given to use a foreign decoder. I invite you to read the judgement to find out more about it.

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