The Advocate General of the European Court of Justice (ECJ) has said broadcasters cannot stop people from buying cheaper foreign satellite packages.
Julianne Kokott said smart cards could not be restricted to a single territory and to do otherwise would be in contravention of the single open market. “The marketing of broadcasting rights on the basis of territorial exclusivity is tantamount to profiting from the elimination of the internal market,” she said.
“Consequently, the specific subject-matter of the rights in the transmission of football matches does not justify a partitioning of the internal market, and thus also does not justify the resulting restriction of the freedom to provide services.”
The Advocate General’s comments come ahead of a ruling by the European Court of Justice that centres on the Portsmouth publican Karen Murphy, who had purchased a subscription to the Eutelsat-delivered Nova platform, which targets the Greek market. The advise of the Advocate General is not binding on the judges, who will give their opinion later this year.
The case was referred to the ECJ by the High Court in London following an action brought by the Premier League against a company called QC Leisure, which sells subscriptions of foreign pay-TV platforms to people in the UK.
In a strongly worded statement, the Premier League said that if the opinion was reflected in the ECJ judgment, it would prevent rights holders across Europe from marketing their rights in a way which meets demand from broadcasters whose clear preference is to acquire, and pay for, exclusive rights within their own territory only and to use those rights to create services which satisfy the cultural preferences of their viewers within that territory. “If the European Commission wants to create a pan-European licensing model for sports, film and music then it must go through the proper consultative and legislative processes to change the law rather than attempting to force through legislative changes via the courts. The ECJ is there to enforce the law, not change it”.
Murphy had bought a subscription to Nova in order to be able to show Premier League games to visitors of her pub, for which she paid around €890 a year.
Instead, according to the Premier League, she should have bought a special pub subscription from BSkyB at the cost of £6,000. Broadband TV News notes that the price of commercial subscription from Nova TV would presumably be closer to the Sky price than the domestic subscription, with mark-up, which was purchased.
In order to back up the claim, the FAPL produced letters from four international pay-TV platforms, ART, SuperSport (Nova), Canal+ and DigitAlb, stating they have no right to show Premiership football in the UK. The verdict could have big implications for the way broadcasting rights are sold in Europe.
It is our take that it would help to fight piracy by allowing existing market practices. The public showing of live sports events (and of movies as well) is a different case. The fact that a pub subscribes to a foreign satellite platform does not include the right to show the match in public; it only give technical access to the signal. BSkyB sells alongside its regular subscription also special pub subscriptions, which include the right for public viewing.
In other countries, such as The Netherlands and Germany, there are special collecting agencies who sell such public viewing licences on behalf of the rights holders. So, if a pub owner in Holland or Germany would buy a subscription from the platform they would also have to buy a public screening licence from the agency on top of that.