11-02-11

Judge Calls for EU Broadcasting Without Borders A European judge has formally declared that territorial restrictions on football broadcasts are contrary to EU law. In Football Association Premier League Ltd v QC Leisure and Karen Murphy v Media Protection Service Ltd [C-403/08 and C-429/08] (two cases being heard together), Advocate General Juliane Kokott issued an Opinion in which she held that partitioning of the European market for broadcast rights is "at odds with the principle of the internal market". The Football Association Premier League Ltd has for many years sold broadcast rights through a network of exclusive licences for specific territories (generally country by country). The licensees' local rights are protected through the use of decoder cards, and this case involves an English pub landlady who purchased a Greek decoder card - for a lower price than was offered in the UK. The FAPL complained, arguing that the law prohibits sale and use of decoder cards outside the assigned area, whilst the importer and the publican argued that European law justifies "free movement" (Pan-European re-sale and use) of the cards. Advocate General Kokott's Opinion found against the Premier League on a number of issues but her most fundamental point is that restrictions on importation of decoder cards are not compatible with the overriding European requirement to "promote the cross-border provision of services". The judge admits that there are exceptions to this rule but "if the EU legislature actually intended to protect the geographical partitioning of television markets … it ought to have expressed this with much greater clarity". Whilst this Opinion is no doubt strongly persuasive, it is not binding and the ECJ may rule differently when it eventually reaches a final decision (probably later this year). However, it is difficult to see how the Court could disagree with Kokott's single-market point: "a restriction on that freedom is warranted only if it pursues a legitimate objective compatible with the [EU] Treaty and is justified by overriding reasons of public interest". There is a possibility that the ECJ (or perhaps certain Member States) may use the current economic climate to justify protective measures for some specific industries - though in this case the Advocate General has made clear that "a partitioning of the internal market for the reception of satellite broadcasts is not necessary in order to protect the specific subject-matter of the rights to live football transmissions". The relevance of this case to other types of content, however, may in many instances be trumped by practical and economic realities: for example, it is likely that TV and movie providers (and even the Premier League) could maintain territorial restrictions if their broadcasts were physically available only in a specific area by way of local aerial-based transmission rather than the ubiquitous satellite system, albeit that the value of those rights might be significantly reduced. In other cases, such restrictions are effectively maintained through a physical barrier such as a fashion, custom or language. For the music business, territorial licensing has long been maintained through hardware formats - though, as this Opinion is based on the "borderless internal market" and "no specific right to charge different prices for a work in each Member State", the implication is that territorial music licensing could continue only without purely-territorial pricing. This Opinion is not the last word in this case or on this issue generally, but it certainly suggests trouble on the horizon for the Premier League, and perhaps other content industries as well. The full text of the Opinion may be accessed via: http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79889796C19080403&doc=T&ouvert=T&seance=CONCL.
Article by Tom Frederikse