Technology, Media & Telecommunications (TMT)

European Court of Justice does not rule out foreign television services

06 Oct 2011

3 min read

In a preliminary ruling passed by the Grand Chamber of the European Court of Justice on the 4th October 2011, the court laid down a variety of principles which may bring about changes for the television service market. Having examined the case of a bar in the UK that was showing Premier League matches using a Greek television decoder, the court concluded the following:

  • Under European law, Member States cannot prevent any individual from obtaining satellite television broadcasting services from another Member State. This applies even when the broadcast being availed of by means of a foreign service is protected by the first State’s municipal law. To illustrate, if the broadcasting of football matches had legal protection under any national law, such law could not stop consumers from obtaining the same transmission through the licensed television service of another Member State. In this case, the court categorically stated that an individual could legally watch a transmission of the matches on a television service from another Member State (Greece in this case) as long as the service was licensed to transmit that match by the Premier League. Furthermore, any national laws preventing access to this form of service was stipulated by the ECJ as being categorically against EU law. This effectively means that the single market principle has now effectively pioneered the territory of the television market.
  • The above freedom extends to individual consumers making use of such services from home and not to businesses using such services as a way to make profits. This exclusion applies to all public establishments even if no money is spent specifically by consumers to watch the match as it is still considered to be the driving force behind profits turned over in any other manner, such as food or drink. This effectively means that domestic television consumers cannot be blocked in any way from making use of television services from other Member States while public establishments are still likely to be treated differently.
  • Due to the technical processes underlying the broadcasting of a football match, the said match can no longer be considered as the intellectual property of either the Premier League or the clubs taking part in the match. This does not extend to the short montages introducing the matches along with the anthem and symbols of the league because those remain copyrighted. The pivotal difference is in the random nature of the football match as nobody can claim copyright on something as unstructured and unpredictable as a sporting event. This will definitely have a bearing on the broadcasting negotiations next year between UEFA and television service providers. Some have suggested that the presence of copyrighted items such as the symbol of the league will be more present to water down the freedoms created by this principle.

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