European Court ruled in favour of pub licensee
A temporary victory for long-suffering publicans. On 4 October 2011 the European Court of Justice (ECJ) ruled against the UK football’s Premier League stating that the imposition of national borders to sell rights on a territory-by-territory basis contravened EU laws on free trade. The court said that restricting the sale of European foreign satellite decoder cards is “contrary to the freedom to provide services”. Essentially the court agreed with Karen Murphy, a publican from Portsmouth. Ms Murphy’s lawyers had argued she was entitled to show the matches because she had paid a subscription to a Greek broadcaster and that to enforce Sky’s exclusivity in the UK was against European free trade laws.
But the European judges – knowingly or unknowingly – appeased both aisles of the courtroom when they advised further that, while beaming in the matches themselves from overseas did not breach the Premier League’s copyright, broadcasting the Premier League’s "anthem", graphics and build up without its permission did amount to a breach.
The rights holders (aka the football league) could use this to their advantage and force their TV partners to include more copyrighted elements throughout the broadcast – playing music when goals are scored, for example. This way, the Premier League and other rights holders could help protect their businesses in pubs and clubs.
The ruling will now go back to the British High Court for final ratification and interpretation. This will not be an easy task as there is enough ambiguity in the ECJ’s ruling to keep the lawyers busy for months to come.
Here is the background to this long-running saga: The UK Court of Appeal had asked the ECJ to clarify the case of Portsmouth pub licensee Karen Murphy. Fed up with paying a huge subscription fee to Sky to show football matches, Ms Murphy bought the games from a Greek satellite broadcaster for a much cheaper price.
Opting for Greece’s Nova, Ms Murphy saved a lot of money: a Sky subscription for her pub would have cost her GBP 700 pounds (EUR 800) per month, while Nova charged her GBP 800 for the year.
Sky subscription rates for pubs represent a significant expense for publicans, says the British Beer & Pub Association. An ‘average’ pub could pay in the region of GBP 12,000 to GBP 15,000 (EUR 17,000) per year, while larger venues will be paying considerably more than this. A number of pubs no longer show football matches because the fees have made it financially unviable.
The Premier League, which according to reports sold the right to broadcast games in the UK exclusively to Sky and ESPN for GBP 1.8 billion (EUR 2.1 billion), took legal action against Ms Murphy claiming she was in breach of copyright. She was fined GBP 8,000 by a British court.
However, her anger would not let her rest. “If you as a man on the street wanted to buy a car you could go to any garage and buy one. As a publican I could only go to a Sky garage and pay ten times what you would expect to pay”, Ms Murphy was quoted as saying.
Hence her case winds up with the European Court of Justice.
The British Beer & Pub Association welcomed its ruling, saying: “Perhaps now, football will become more affordable for pubs, as live sport is a key ingredient of a great pub for millions of customers.”
Mrs Murphy said she no longer had a decoder box in her pub and would wait for the High Court to give a "stamp of approval" before reinstating it.
She had better. Football leagues across Europe are closely examining the copyright issues raised by the judgment to work out how they could use them to their advantage.
