Since my previous post, I’ve read one or two suggestions on the web and Twitter that Karen Murphy didn’t actually win against the Premier League, because its copyright in its anthem etc. means she can’t show NOVA matches anyway. Dan Sabbagh on the Guardian website for instance writes:
Unfortunately, the court held that pubs – who are in effect trying to profit from getting cheaper foreign decoder cards – can’t benefit. That’s because she was breaching the copyright of the Premier League, not by showing live coverage of the football match itself, but by broadcasting the Premier League’s logo or anthem without permission.
I think he goes too far here, though: the ECJ said only that Karen Murphy was communicating material to the public for the purposes of the Copyright Directive. It did not say that by doing so she actually breached anyone’s copyright, or could be prevented from showing matches.
I explained in my previous post that I doubt intellectual property rights over things like the Premier League anthem can be used to get round EU internal market rules. I say that partly because of section 31 of the Copyright, Designs and Patents Act – but mainly because I don’t think EU law is quite such an ass as that.
It’s worth reading the opinion of Advocate General Kokott in the case, which while not binding, indicates that her thinking on this is similar to mine. At paras. 229-230 she considers whether free movement law necessarily defeats copyright in these circumstances. Admittedly she doesn’t go quite that far:
229. A prohibition of reception would clearly be reasonable if rights existed to the whole broadcast or substantial parts which permitted an objection to be made to its communication in a pub.
230. If, on the other hand, secondary elements are involved, the economic value of which represents only a very small portion of the value of the broadcast as a whole and which are only of very low importance or are even without importance for viewers, it would be disproportionate to prohibit the reception of the broadcast as a whole for their protection. This does not rule out ensuring an adequate remuneration in some other way. A flat-rate levy paid to a collecting society by publicans .. might be imagined ..
What she says offers very little support, though, to the view that pubs can’t show matches using foreign decoders at all. We are surely not dealing here with copyright over the whole broadcast, but only of secondary elements, without importance for viewers.
I’m not sure even AG Kokott’s analysis gets to the bottom of it, though. I wonder in what sense Karen Murphy (say) could be said to breach copyright at all, if a publican using Sky to broadcast matches does not. You might say, ah, well, but the “Sky pub” has been granted implied permission to show broadcast material. Fine. But if that’s right, then a “NOVA bar” in Greece has been granted exactly the same implied permission – and so has Karen Murphy. The entire thrust of the ECJ’s ruling is that she’s just as legitimate a user of Premier League matches as they are.
On what basis could Karen Murphy be treated less favourably than a NOVA bar in Greece or a Sky pub in England, and be threatened with a copyright action if they’re not? Only on the basis that she happens to be based in the UK, not Greece; or that she happens to be using a Greek broadcaster, not a British one. Either approach again runs straight into internal market law, and the fact that by treating her differently on either basis, the Premier League would be attempting to partition the market, and either discriminate on grounds of nationality, or restrict free movement of services or freedom of establishment, depending on how you look at it. It would surely be difficult to justify such a discriminatory copyright enforcement policy as proportionate.
That’s why I doubt the Premier League can succeed in maintaining a nationally partitioned market by copyright enforcement alone.