… Well it isn’t now! When a football competition is not protected by competition law

A recent court decision on a matter of copyright and competition law concerning the broadcast of Premier League football matches may have radical repercussions for the way football and other sports are funded.

Following a ruling from the Court of Justice of the EU (CJEU) in October, the High Court recently quashed a conviction against pub landlady Karen Murphy for showing English Premier League football matches using a foreign decoder. The decoder and card were bought from Greece, rather than the card and decoder supplied by Sky® television, who own the broadcasting rights for Premiership football in the United Kingdom. The cost of showing the Premiership matches through her Greek decoder and the Greek TV station Nova was 800 pounds per year, rather than the 700 pounds through Sky.

It is a Court case that has rumbled on for six years following a prosecution for showing live football at the Red White and Blue in Portsmouth, when Mrs Murphy had been fined over 8000 pounds.

There were questions raised regarding both copyright law and competition law. In a previous judgement in October 2011, the CJEU ruled that having a system that permitted exclusive broadcasting rights in one country was “contrary to EU law”. The Premier league would therefore have to try to rely on copyright law to protect their rights.

The CJEU ruling continued: “National legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.”

The result was not an outright win for Mrs Murphy, as copyright law could still be used to protect the football matches. According to the CJEU, the opening video sequence, the Premier League anthem, and pre-recorded clips showing highlights of recent Premier League matches and various graphics could be protected by copyright.

“By contrast, the matches themselves are not works enjoying such protection,” says the ruling. Despite this, the Premier League, understandably, decided to focus on one aspect of the ruling, saying “Should Mrs Murphy, or any other publican, use European Economic Area foreign satellite systems to show Premier League football on their premises without our authority and outside the scope of our authorisation, they make themselves liable for us to take action against them in both the civil and criminal courts.

The Premier League raises vast sums of money from Sky subscribers. Indeed, it is Sky money that is often credited with the rise of the Premier League and the overwhelming success of British teams in European football competitions, and their ability to sign world class footballing talent. Premier League teams are reliant on the money they receive from broadcasting rights. Arguably, this ruling could introduce competition into the field, which may benefit consumers in terms of the price they pay to watch football, but may have a significant impact in terms of how football – and other sports – is funded.

The wider legality of screening football matches is yet to be decided, and a lot of interested parties are keeping a very close eye. However, one way in which broadcasters may be able to strengthen their position is by ensuring broadcasts are “watermarked”. By this, we mean that certain copyright materials, for example information in the background where a match is being played or some form of continual on-screen translucent logo presence, can be incorporated into the broadcast. Similarly, breaks between match play and replays can be separated by a short video sequence that attracts copyright. This way, even if competition law cannot be used to prevent unauthorised broadcasts, copyright law may be of assistance as removal of the watermarks is impractical.