Few will have missed the National and International publicity that has greeted a ruling by the European Court of Justice (ECJ) in two joined cases concerning the use of imported de-coder cards from European broadcasters which enable the viewing of live premier league football matches on a Saturday afternoon.

Two High Court cases (Football Association Premier League Ltd and Others –v- QC Leisure and Others; Karen Murphy –v – Media Protection Services Ltd) resulted in questions being referred by the UK Courts to the ECJ for a ruling.  The ECJ have determined that the grant of exclusive satellite broadcasting licences in one member state, which includes a term restricting the licensee from supplying de-coder cards for viewers outside of that territory, is an improper restriction of competition contrary to Article 101 (1) of the EU Treaty.  The ECJ also ruled that UK legislation making it unlawful to import and sell de-coder cards from other member states was also a breach of the Treaty (Article 56).

This has been interpreted by many as meaning that public houses in the UK are now free to use de-coder cards bought and imported from (for example) Greece to show Saturday afternoon live football.   In reality, however, that may not be the case. 

Firstly the ECJ ruling must be adopted by the UK Courts though it seems very likely that will happen. The effect will be that individuals will be able to lawfully buy and use cards imported from other member states to access Premier League (PL) matches for private use but it does not necessarily mean that landlords can use the cards to show games in their pubs as to do so would continue to constitute communication to the public of various copyright works in the broadcasts including video sequences, music and various graphics which would infringe copyright.   This will presumably include ‘Action Replays’ which are after all by definition a recording and will therefore immediately carry copyright.

The ECJ believe that there can be no copyright in the football element of a live football match.  So long therefore as the PL ensures that their coverage includes copyright protected elements, public showing of those broadcasts without the permission of the rights holders would continue to be prohibited and as a consequence liable to enforcement action. 

We certainly have not heard the end of this particular story!