October 11, 2011 12:58pm PT by Eriq Gardner
The UK Pub That Raised Plenty of Questions For TV Rightsholders
Last week, an English pub landlady scored a startling victory at the European Court of Justice. The case involved a woman, Karen Murphy, who refused to pay expensive subscription fees to Sky Sports to access UK Premiere League soccer games. Instead, she opted to subscribe to the much cheaper Greek broadcaster Nova and use a foreign decoder to access game telecasts for her bar.
She was then arrested and convicted of "fraudulent reception of transmissions," before she appealed the judgement on the basis that national anti-decoder statutes violated the spirit of EU competition laws holding that EU should operate as a single market. Murphy emerged victorious in a decision that's quietly been reported on this side of the Atlantic, but is beginning to be debated by lawyers who wonder what kind of ramifications the outcome will have beyond soccer.
In the short term, the ruling could raise doubts and difficulties for intellectual property rights-owners such as Hollywood studios and sports leagues striking territorial licensing agreements.
For years, these entities have generated significant income licensing material on a nation-by-nation basis in the EU, but now agreements between rightsholders and broadcasters could be shadowed by broader EU law and concerns over protection.
It's already been speculated that a sports league like the UK Premiere League will have to accept lower prices to satisfy the EU at large and it may not be a terrible stretch to imagine that the licensor of The Big Bang Theory might too.
Then again, some lawyers are advising extreme caution not to read too heavily just yet on a very technical decision whose discussion mostly pertained to sports rights. But some folks are doing it anyway.
For example, could the decision influence music licensing in the EU? Here's one commentary:
"Well, arguably the ruling means that consumers should be able to shop around across the EU for better deals on digital music in the same way they already can for CDs. So, if the labels licence a French digital music service in theory intending it to only be used by French consumers, they can’t stop British music fans from also accessing it. Or, perhaps, the fact the German collecting society GEMA won’t licence Spotify, shouldn’t stop German music fans was signing up to Spotify UK, licensed by PRS For Music."
The decision has also flipped on its head standard conceptions about copyright in sporting events.
Anybody who has watched a sports match in the U.S. may be familiar with the standard refrain, "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent, is prohibited."
In the EU, though, this probably is no longer true.
The European Court found in its decision last week that the matches themselves aren't copyrightable because, according to The Guardian, those "sporting events cannot be considered to be an author's own intellectual creation."
The court didn't go so far as to rule these broadcasts to be beyond copyrighting, as some of them included elements that could be protected such as the opening sequence, a pre-recorded arrangement of highlights, and various graphics, but that probably won't be any comfort to the NFL, MLB, NHL, or NBA who have long attempted to establish some dominion over game events and who have been sometimes frustrated by Europeans streaming telecasts online.
Plus, what happens when the next pub landlady comes along with a decoding technology that strips ESPN graphics from sports events?