The FA Premier League (“FAPL”) runs the Premier League, the leading professional football league competition for football clubs in England. FAPL’s activities include commercially exploiting the associated broadcasting rights. In maximising the value of the broadcasting rights to its members (the clubs) FAPL grants licences in respect of these rights for live transmission, on a territorial basis and for three-year terms. Rights are awarded to broadcasters under an open competitive tender procedure which begins with the invitation to tenderers to submit bids on a global, regional or territorial basis. Demand then determines the territorial basis on which FAPL sells its international rights. However, as a rule, that basis is national since there is only a limited demand from bidders for global or pan-European rights, given that broadcasters usually operate on a territorial basis and serve the domestic market either in their own country or in a small cluster of neighbouring countries with a common language. Where a bidder wins, for an area, a package of broadcasting rights for the live transmission of Premier League matches, it is granted the exclusive right to broadcast them in that area. This is necessary, according to FAPL, in order to realise the optimum commercial value of all of the rights, broadcasters being prepared to pay a premium to acquire that exclusivity as it allows them to differentiate their services from those of their rivals and therefore enhances their ability to generate revenue. In order to protect the territorial exclusivity of all broadcasters, they each undertake, in their licence agreement with FAPL, to prevent the public from receiving their broadcasts outside the area for which they hold the licence. This requires, first, each broadcaster to ensure that all of its broadcasts capable of being received outside that territory – in particular those transmitted by satellite – are encrypted securely and cannot be received in unencrypted form. Second, broadcasters must ensure that no device is knowingly authorised so as to permit anyone to view their transmissions outside the territory concerned. Therefore, broadcasters are in particular prohibited from supplying decoding devices that allow their broadcasts to be decrypted for the purpose of being used outside the territory for which they hold the licence. In Greece, at the material time, the holder of the sub-licence to broadcast Premier League matches was NetMed Hellas, who broadcasted matches via a NOVA satellite package. Every subscriber, private or commercial, to the package had to be able to provide a name, a Greek address and a Greek telephone number. Subscriptions can be taken out for private or commercial purposes. In the UK, at the material time, the licensee for live Premier League broadcasting was BSkyB Ltd. Where a natural or legal person wished to screen Premier League matches in the UK, they must take out a commercial subscription.
In the UK, certain restaurants and bars began to use foreign decoding devices to access Premier League matches. They would by a card and decoder box from a dealer which would allow them to receive a satellite channel broadcast in another Member State, such as the NOVA channels, the subscription to which was considerably less expensive than BSkyB Ltd’s subscription. FAPL took the view that such activities were harmful to its interests because they undermined the exclusivity of the rights granted by licence in a given territory and hence the value of those rights. Consequently, FAPL and others brought, in Case C-403/08, what they consider to be three test cases before the High Court of Justice of England and Wales, Chancery Division. Two of the actions were against suppliers (QC Leisure, AV Station etc) to public houses of equipment and satellite decoder cards that enabled the reception of programmes of foreign broadcasters, including NOVA. The third action was brought against the operators of four public houses that screened live Premier League matches by using a foreign decoding device. In short, the FAPL alleged that infringements of their intellectual property rights had occurred through the (mis)use of “pirated” decoder cards. The thrust of the defence was that the proceedings were unfounded because the decoder cards in question were not in any way “pirated” but were in fact issued and placed upon the market, in another Member State, by the relevant satellite broadcaster.
In Case C‑429/08, Ms Murphy, the manager of a public house in Portsmouth, procured a NOVA decoder card to screen Premier League matches. Agents from Media Protection Services Ltd (“MPS”), a body mandated by FAPL to conduct a campaign of prosecutions against public house managers using foreign decoding devices, found that Ms Murphy was receiving, in her public house, broadcasts of Premier League matches transmitted by NOVA. Consequently, MPS brought Ms Murphy before Portsmouth Magistrates’ Court, which convicted her of two offences under section 297(1) of the Copyright, Designs and Patents Act on the ground that she had dishonestly received a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme. After Portsmouth Crown Court had essentially dismissed her appeal, Ms Murphy brought an appeal by way of case stated before the High Court of Justice, taking a position similar to that adopted by QC Leisure and others.
In both proceedings the High Court of Justice of England and Wales, Chancery Division, decided to stay proceedings and to refer a series of questions to the CJEU for preliminary ruling. By order of the President of the CJEU of 3 December 2008, Cases C-403/08 and C-429/08 were joined for the purposes of the written and oral procedure and the judgment. The judgment of the CJEU (Grand Chamber) was delivered on 4 October 2011. The referred questions, the ruling of the CJEU and its implications are discussed below.
Haag: T.M.C. Asser Press, 2013. 271-286 p.
sports, sports law, competition law, broadcasting rights, football, Premier League
idrott, idrottsjuridik, konkurrensrätt, sändningsrättigheter, fotboll, Premier League