No Free Trade for Satellite TV

A pub landlady has won her court fight with the English Premier League over using a Greek TV decoder to screen games.

Karen Murphy has paid nearly £ 8,000 in fines and costs for using the cheaper decoder in her Portsmouth pub to bypass controls over match screening.

But she took her case to the European Court of Justice (ECJ). It found partly in her favour, and now the High Court in London has also found in her favour.

Instead of using Sky, on which it costs £ 700 a month to see Premier League matches, she used the Greek TV station Nova, which has the rights to screen the games in Greece, and which cost her £ 800 a year.

The High Court in London on Friday ruled that Karen Murphy's appeal over using the decoder to bypass controls over match screening must be allowed.

The ECJ said last autumn that national laws that prohibit the import, sale or use of foreign decoder cards were contrary to the freedom to provide services.

The European judges also said the Premier League could not claim copyright over Premier League matches as they could not be considered to be an author's own intellectual creation and, therefore, to be works for the purposes of EU copyright law.

However the Premier League and co are allowed to claim copyright control over titles, logos and promotional videos etc shown around the football action. Presumably if the Greek service relays the Premier League programme then it could effectively be banned from commercial use in pubs in just the same way as Sky's home subscriber sports channels are banned.

On the positive side it does mean that there can be no legal issue with private householders subscribing to foreign channels as there are no commercial compexities.

In March last year, Gregory Turner, of the Golden Cup pub in Burton-On-Trent, was ordered to pay £ 19,294 in costs after losing his initial appeal over a £ 500 fine for showing football using a foreign satellite TV subscription.

On 1st March this year, the High Court quashed both the original conviction and a subsequent decision by Stafford Crown Court confirming the conviction. Both courts were ordered to repay to Turner everything he had paid by way of fines and costs.

High Court judges ruled that Stafford Crown Court had not considered the impact of EU law on the case. The long-running Karen Murphy case is currently being considered by judges at the European Court of Justice.

Although, Turner had been using Arab Radio and Television (ART) Network to screen games, he argued that ART were also trading in Italy.

Pub landlord Karen Murphy is defending her right to show English Premier League matches in her pub using a fully paid up subscription to Greek satellite TV.

In a decision that could change the way sports rights are sold across the continent, the European court of justice was advised that forbidding pubs from buying in cheap football coverage from overseas operators was incompatible with European free trade laws.

Murphy was taken to court by a company representing the league over her decision to import a Greek decoder to show the games rather than paying Sky, which holds the rights in the UK. She has fought the case all the way to the highest European court.

Juliane Kokott, one of the eight advocate generals of the European court of justice, advised that selling on a territory-by-territory basis represented a serious impairment of freedom to provide services , adding that the economic exploitation of the [TV] rights is  not undermined by the use of foreign decoder cards as the corresponding charges have been paid for those cards .

Because Murphy had paid the legitimate rights holder in Greece, she was entitled to receive its satellite broadcasts. Whilst those charges are not as high as the charges imposed in the UK there is ... no specific right to charge different prices for a work in each member state, Kokott said. Selling on a basis of territorial exclusivity was tantamount to profiting from the elimination of the internal market .

Kokott's opinion is not binding, but the Luxembourg court usually follows the advice of advocate generals. The court is expected to deliver its verdict later this year. As well as the criminal case against Murphy, civil cases against two importers of the decoder cards are being considered in parallel.

The Premier League will this summer face a potentially devastating challenge in the European courts, after lawyers said there was a strong possibility that the little-noticed case would undermine the principle that UK landlords must pay Sky or Setanta for the right to show live football in their pubs.

Legal experts said that the case, the latest round of a long-running battle with publicans over showing overseas broadcasts, could overturn the basis on which the Premier League sells its TV rights.

Last year, the high court passed a test case involving several UK publicans to the European Court of Justice for advice. It is due to reach a decision by the summer.

European law prevents pirated decoder cards being used to access broadcasts illegally. But the publicans will argue that their decoders were legitimately bought in Greece and imported by a distributor. Under free-trade laws, they will argue that they should be allowed to import decoders and cards from other member states. Lawyers at Denton Wilde Sapte said the challenge was significant.

The firm's senior associate Alex Haffner said: The strong possibility of the ECJ and the UK high court finding in favour of the publicans is a direct challenge to the right to license media rights on a territory-by-territory basis and to the willingness of pay-TV operators to pay handsomely for exclusive rights within their markets.

The Premier League is expected to argue that if the ECJ finds in favour of the publicans it would destabilise the market and disadvantage consumers. It is expected to argue that the devices are obtained using false names, and point to links with organised crime. If it were to lose the case, then not only would pubs be able to avoid paying an average of ฃ9,000 a season to showSky and Setanta matches, with a knock-on effect on the amount broadcasters were prepared to pay.

Based on article from morningadvertiser.co.uk

But in the meantime it's the enforcers that are adopting the intimidatory language of organised crime.

Anti-money laundering laws will be used to pursue foreign satellite suppliers that let pubs show football, under new plans. That’s according to a new chief at the agency that probes the screenings in pubs. Retired policeman David Eyles also revealed that prosecutions are currently being brought against up to 30 licensees for screening games via foreign satellites.

Eyles, operations director at Media Protection Services (MPS), was the director of operations at the Metropolitan Police Clubs and Vice Unit until December. Eyles said the Proceeds of Crime Act 2002 will be used to trace and seize assets from foreign satellite suppliers, if licensee Karen Murphy loses her case at the European Court of Justice (ECJ). To use the 2002 Act, it must be shown that income from suppliers was generated by criminal activity. He said the process of prosecuting licensees is on-going, with case papers being brought against around 30 hosts for using non-EU cards to screen games last football season.

MPS boss Ray Hoskin said there were plans to recruit others with similar background to Eyles.