28-10-2011

Landlady still can’t use foreign decoder to show Premier League matches in UK

The European Court of Justice (ECJ) has ruled in part in favour of a Portsmouth pub landlady saying that contracts and laws stopping UK residents from using foreign decoders to access Premier League football matches are against EU law – but that they still can’t be shown without permission because of copyright laws.

The Football Association Premier League (FAPL) is the governing body of the English Premier League. It owns copyrights in the broadcasts of live Premier League matches which it makes available via satellite, selling exclusive licences to broadcasters in each EU country giving them the sole right to broadcast those matches to their subscribers in that country.

To protect its copyrights, the FAPL requires each broadcaster to encrypt the satellite signal provided to the subscribers, which means subscribers in each country need a decoder device to see the matches. Crucially, the licences stop each broadcaster from providing its decoders outside its territory. In the UK, there is also a law that stops people in the UK from using foreign decoders – aimed at stopping them from accessing satellite broadcasts from another EU country.

A pub landlady from Portsmouth used a Greek decoder and showed Greek broadcasts of the matches to her customers. This was cheaper than using a UK decoder. The UK High Court asked the ECJ to rule on 18 different issues arising from the dispute, to help it make its own decision. Among its ruling, the ECJ said:

  • foreign decoders were not an illegal ‘illicit device’, even if obtained using a false name and address and even if supplied in breach of the licence terms, since ultimately the FAPL was still being paid for their use;
  • the clauses in the FAPL licences stopping broadcasters from one EU country from selling their decoders to people in another EU country were against EU competition law;
  • the UK law stopping people importing, selling or using foreign decoders was against EU law on the freedom to provide services throughout the EU, for which there was no ‘objective justification’.

However, the ECJ also said that people were not allowed to screen broadcasts containing certain copyright materials (known as ‘protected works’) belonging to the FAPL without permission. These do not include on-pitch action, but do include, for example, Premier League logos, music and pre-recorded highlights. The live matches the pub landlady was accessing using the Greek decoder did contain protected works, and she did not have the FAPL’s permission to show them.

In making this ruling, the ECJ clearly took into account that the landlady was screening the matches for profit.

The ECJ has now remitted the dispute back to the High Court to rule on the case.

Recommendation

  • Pubs and other venues showing Premier League football matches for profit should not rush to buy foreign decoders until the High Court has issued its ruling – particularly on the issue of whether they can show broadcasts that include FAPL copyright materials without prior FAPL permission.
  • Those wishing to access matches for their own use using foreign decoders should take specialist legal advice.