Apologies for going on about football. I’ve got a bee in my bonnet about the suggestion that today’s ECJ ruling leaves room for the FA Premier League to use copyright law to continue preventing pubs from using foreign decoders to broadcast matches.
In its carefully-worded statement on the ruling, the Premier League makes much of what it calls the complexity of the case. It’s a skilful attempt to persuade the world that the ruling’s less of a defeat than it is. I’m particularly interested in this paragraph:
We are pleased that the judgment makes it clear that the screening in a pub of football-match broadcasts containing protected works requires the Premier League’s authorisation. Currently only Sky and ESPN are authorised by the Premier League to make such broadcasts.
Actually the judgment doesn’t make clear that pub screenings of football matches containing copyright-protected works requires the Premier League’s authorisation at all. It simply says such screenings involve communication to the public of those works within the meaning of article 3 of the Copyright Directive. Not the same thing.
Even more interesting is the clever way in which the second sentence of the paragraph appears to be connected logically to the first. Actually the connection is more tenuous. The first sentence includes the claim that screening matches in pubs requires authorisation. If this is true, it must be as true for pubs showing matches broadcast by Sky as it is for pubs showing matches broadcast by anyone else.
The second is not about screening matches in pubs, but about making broadcasts of matches to pubs and homes. Unless all other exclusive deals within the EU have now expired, I don’t think it can be true that only Sky and ESPN are authorised to do make such broadcasts. When Karen Murphy showed NOVA matches, NOVA was also authorised to make broadcasts. What the Premier League must mean is that only these firms have been authorised to make broadcasts in Britain. That they’ve omitted that qualification is, I suspect, deliberate and legally revealing.
If the Premier League is trying to claim that pubs screening Sky matches in the UK (including copyright material) are implicitly authorised to do so by “piggy-backing” on Sky’s authorisation to broadcast them, fair enough; but it must follow that pubs screening NOVA matches are similarly authorised to do so on the basis of NOVA’s authorisation. Unless you think the EU market can simply be partitioned nationally, Karen Murphy must be in the same position, with regard to copyright, as “Sky pubs”. In other words, the Premier League’s resort to copyright is just a rearguard attempt to partition the market all over again, and falls down on exactly the same legal grounds as its attempt to stop the sale and use of foreign decoders.
I’ve referred to drugs because the more I think about it, the more I think the legal issues here are analogous to those with which the ECJ has considered many times over the years in cases involving “parallel trading” in licensed medicines. Parallel trading occurs where a drug manufacturer sells its drugs in one market – say the UK – at a high price, while selling the same drugs in another market – say, Greece – at a much lower one. Parallel traders try to take advantage of the differential by re-importing the drugs from Greece to the UK, perhaps undercutting the manufacturer’s desired UK price. This is all quite similar, if you think about it, to the way in which the Premier League is trying to partition the live football market and the way Karen Murphy and the suppliers of her decoder in effect “reimported” live football from Greece.
It’s well established in the drugs cases that the right of a manufacturer to use intellectual property law – in that case, trademarks – to inhibit parallel imports is very limited. Paragraph 23 of case C-207/10 Orifarm makes the point:
the trade mark proprietor’s opposition to the repackaging of products bearing the mark, in that it constitutes a derogation from free movement of goods, cannot be accepted if the proprietor’s exercise of that right constitutes a disguised restriction on trade between Member States …
The drug parallel import cases show clearly that intellectual property rights do not simply “trump” internal market law, enabling rights holders to partition the EU market. The reverse is true: where there’s a conflict, internal free market rights can effectively limit the scope of intellectual property rights.
There’s no reason to think the Premier League’s in a stronger position than drug manufacturers. On the contrary, they’re in a weaker position because pub landlords don’t even have to “repackage” football matches. They simply give viewers access to the exact same service the Premier League has authorised to be shown within the EU, without the slightest interference with anthems, logos or any other copyright material.