Cheaper pub football? - 2nd half

ECJ upholds earlier opinion of Advocate General

 

Following the earlier opinion of Advocate General Juliane Kokott given on the two conjoined cases of Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd (Cases C-403/08 and C-429/08) referred to it by the High Court, the ECJ has held that national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services. Portsmouth pub landlady Karen Murphy was convicted under the Copyright, Designs and Patents Act 1988 and ordered to pay nearly £8 000 in fines and costs for using a cheaper Greek decoder in her licensed premises to bypass controls over match screening of Premiership football.

 

In its detailed judgment delivered on 4th October 2011 the court held, at paras 114–117, that :

...as regards the premium paid by broadcasters in order to be granted territorial exclusivity, it admittedly cannot be ruled out that the amount of the appropriate remuneration also reflects the particular character of the broadcasts concerned, that is to say, their territorial exclusivity, so that a premium may be paid on that basis.

None the less, here such a premium is paid to the right holders concerned in order to guarantee absolute territorial exclusivity which is such as to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference to which it gives rise are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market. In those circumstances, that premium cannot be regarded as forming part of the appropriate remuneration which the right holders concerned must be ensured.

 

Consequently, the payment of such a premium goes beyond what is necessary to ensure appropriate remuneration for those right holders.

Having regard to the foregoing, it is to be concluded that the restriction which consists in the prohibition on using foreign decoding devices cannot be justified in light of the objective of protecting intellectual property rights.

 

Both cases now return to the High Court for final decision on the appeals against conviction.  To read the full ECJ judgment click here.

 

 

Date Added: 4th October 2011