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'Big decisions' for broadcasters after ECJ ruling on exclusivity

Landlady wins right to use foreign satellite decoder

10 October 2011

Broadcasters may have to change the way they sell programmes within the EU after the ECJ ruled that a pub landlady from Portsmouth can use a Greek satellite decoder card to show locals live Premier League matches.

The ECJ said national legislation, which banned the use of overseas decoders, amounted to an unlawful restriction on competition.

Paul Dixon, partner at Molesworths Bright-Clegg Solicitors in Rochdale, acted for Karen Murphy.

He said he hoped the High Court, which referred the case to Europe, would be able to decide the case in the light of the ECJ ruling by the end of the year as “an awful lot” was hanging on the outcome.

Dixon said the ruling made clear that people could buy satellite decoders from any country in the EU and use them in any country in the EU.

“A lot of pubs use foreign satellite cards and have done for some time,” Dixon said.

Dixon said that since the Murphy case was referred to Luxembourg, the Premier League had put its “campaign of prosecutions” involving EU cards on hold.

However, Dixon said the ECJ had also made clear that satellite cards bought for domestic use could not be used for commercial purposes in pubs where broadcasts included copyright-protected material, such as the Premier League anthem or logo.

He added that prosecutions of pubs over their use of satellite TV had become the mainstay of his practice over the last seven years.

Chris Walsh, head of dispute resolution at Onside Law, said: “There may be ways in which the Premier League and others can enforce rights from a copyright perspective even if they can’t protect the match itself and can’t stop people buying foreign decoders.

Walsh said the case raised issues which went far wider than football and extended to the sale of any broadcast.

“It will be impossible to enforce exclusivity on a territory by territory basis,” he said.

“It remains to be seen how this will play out. The Premier League is looking to sell its rights from 2013. There are some pretty big decisions as to how they package them in the light of this decision.”

Peter Watts, partner at Hogan Lovells, warned against a “one-size-fits-all conclusion”.

He went on: “It will depend on the nature of the content and demand. One could see people exploiting the content on a European-wide basis.”

Watts said the debate was not over and the Premier League had plenty of points to argue about when the case returned to the High Court.

“What the case undoubtedly illustrates is a direction of travel which is quite significant and hiding from that becomes difficult.”

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