HomeUncategorizedPub Landlady Takes On Sky In The European Court, But Who Will It Benefit?   


Pub Landlady Takes On Sky In The European Court, But Who Will It Benefit? — 2 Comments

  1. More on this story from mediaguardian:

    Note the case is between the pub landylady and the PRemier League – not the pub landlady and Sky.

    The Premier League today embarked on a long-awaited court action that could have profound implications for the future of the £3bn-plus its clubs earn from broadcast contracts and equally severe consequences for fans who like to watch 3pm kick-offs in the pub on a Saturday afternoon.

    The European court of justice in Luxembourg was the setting for what appears an uneven legal battle: in one corner, a doughty Portsmouth landlady who wants to continue showing foreign broadcasts of top-flight English football in her pub; in the other, lawyers for the Premier League who claim Karen Murphy, landlady of the Red, White and Blue in Southsea, is breaking copyright law, warning of the dire impact on its revenues and the knock-on effect for the film and television industries if they lose.

    The Premier League argues that the future of one of the UK’s biggest and highest-profile exports – watched in 211 countries and worth £1.4bn – is at stake.

    In an attempt to save on the prices charged by Sky, Murphy purchased a Greek system through an importer and paid an annual subscription. The Premier League, which sells its rights exclusively to Sky in the UK, said she was breaking the law. But her lawyers claim its position contravenes the EC Treaty that guarantees free trade between member states.

    “I think it’s unjust. I think it’s a greedy private company trying to dictate to the small people what they can and cannot do, purely for profit,” Murphy told the BBC. “The law needs changing. If I don’t fight, who is going to fight?”

    The Premier League is seeking a ban on the import, sale, installation and use of the decoders.

    Because overseas rights holders show matches on a Saturday afternoon, a knock-on effect is that the 3pm blackout on live televised football in the UK – designed to stop smaller clubs losing fans to live Premier League matches on TV – is breached on a weekly basis.

    Alongside the criminal case against Murphy, a civil case against two importers, QC Leisure and AV Station, and four publicans injuncted by the Premier League is also being considered by the ECJ.

    “This is very much a David v Goliath battle for the 21st century. We say that it prevents fair trade and is anti-competitive because it hands Sky a monopoly. If we were successful, it would mean the price was determined by the marketplace rather than by Sky,” said Paul Dixon, a partner at Molesworth Bright Clegg, acting on behalf of AV Station.

    The saga began in June 2006 when Media Protection Services, a company employed by the Premier League to crack down on the mushrooming number of pubs showing overseas broadcasts, took Murphy and a string of other landlords to court.

    She was originally acquitted because it was found she had not acted dishonestly as the system was recommended by her then brewery but, when taken to court for a second time, she was fined £8,000. A series of appeals followed until in June 2008 the cases were referred to the ECJ for direction.

    Opening arguments were heard today, with the legal opinion of the advocate general due to follow on 13 January and final guidance due in March. John Cronin, senior associate at Smithfield Partners, which is acting for QC Leisure, said: “Our client remains confident in its position under both national and European law which we believe was reflected positively in the oral submissions made before the ECJ.”

    The Premier League is waiting for the determination of the ECJ before resuming its campaign to stop pubs showing matches on a Saturday afternoon. In most high streets up and down the country fans can currently watch matches on a Saturday afternoon via overseas satellite broadcasts.

    Dixon said it would be no bad thing if the Premier League’s revenues were cut. “There is a lot less money swilling around in the Bundesliga than the Premier League and there didn’t appear to be anything wrong with the state of their national game when they thrashed us in South Africa,” he said.

    A briefing document from the Judge Rapporteur stated that articles 28 and 49 of European competition law ban restrictions on imports and services among EU states. But it also included submissions from the British government, which argued that the Premier League’s ability to sell its rights on a territory by territory basis was “part of the essential function of its copyright”. The French government said it should be for individual member states to decide how it interpreted the law.

    A similar case, launched by Uefa and BSkyB against another importer of decoders, is also due to be heard by the ECJ but does not yet have a court date.

    “The territoriality of copyright and broadcast exclusivity is enshrined in European law and should be protected. The rights for Premier League, and other content, are clearly more valuable from market to market and so there could be significant implications – not just for sport but music, film, anyone who sells content on a territory by territory basis – if this principle is undermined in any way,” said a Premier League spokesman.

    “Ultimately it is the consumer who will suffer as investment in quality content could fall and culturally distinct services struggle to compete in what would be effectively a pan-European market. We’re not the ones challenging the law here, just trying to protect what seems like a reasonable and sensible provision.”

    But Murphy said she had the interests of fans at heart.

    “I’m not damaging football. Football is damaging itself by dictating when matches are shown. Supporters don’t want a match on a Tuesday night – which suits the broadcaster -. They want a match on a Saturday afternoon,” she said. “The whole thing has got way out of control. It’s pure greed.”

    Underlying the dispute is a common complaint from publicans that Sky’s prices are too high.

    While acknowledging Sky’s exclusive rights in the UK, a spokesman for the Beer and Pub Association said: “While Sky say they have put up prices by around 12% – large enough in itself – the actual bills landing on doormats show price increases of well over 20%. That is not only way over inflation, but difficult to justify in these economically constrained times.

    “The consequence is more and more community pubs are taking Sky out. Sky need to urgently reconsider the impact this is having on their community presence and profile.”

    But there could be unintended consequences if the publicans win. Some rights experts believe that the Premier League would have to sell its rights on a pan-European basis. As its lawyers are likely to point out, that would mitigate against the competitive market that EC competition authorities have been attempting to create. And one of the only companies with enough reach and financial clout to bid for the rights would be BSkyB.

  2. Dont hold your breath for a quick verdict….

    EU governments give evidence in Murphy satellite case

    Legal representatives from governments across Europe were among those to give evidence to a panel of 13 judges in Luxembourg today as part of the on-going landmark case involving foreign satellite football.

    From what started out as an appeal by Portsmouth licensee Karen Murphy has mushroomed into a case of European-wide significance.

    The Publican was there to see the UK, Czech Republic, Spanish and Italian governments all state their arguments, during proceedings at the European Court of Justice (ECJ) this morning.

    However, the case will drag on until next year. The ECJ’s advocate general will give an opinion on January 13. The court will then present its judgement, expected three or four months later. This will be sent to the UK’s High Court, which will sit again to make a final ruling.

    The case, which was referred to the ECJ by the UK’s High Court in 2008, is looking at whether the EU law on the free movement of goods should be applied to decoder cards, used by pubs to access Premier League football.

    The UK’s advocate called for a “careful balance to be struck between rights-holders, service providers and consumers”.

    She argued the European Commission, which submitted a report on the case, had “misunderstood” legislation around section 297 of the Copyright, Designs and Patents Act.

    “The fact is 297 is to prevent fraud and nothing to do with territorial fragmentation, and does not seek to protect the interests of the FAPL (FA Premier League),” she told the court.

    The Spanish government agreed that upholding the appeal would amount to “legalising fraudulent practice.”

    But an advocate for the European Commission argued the problem was that content, apart from Premier League football, was not available to viewers outside of the country where a decoder card originates. “Here you have a wide variety of coverage that is blocked,” he said. “This seems like using a sledgehammer to crack a nut.”

    Earlier, James Mellor, representing the FA Premier League, argued the case was about “obtaining cards by deception”, as false names and addresses were used to obtain them.

    If Murphy’s appeal was upheld he said it would have “serious ramifications for all broadcasters”. He also said programme rights would be sold on a pan-European basis, instead of to individual countries. “This would lead to a distorted market and be detrimental to the consumer,” he said.

    On the issue of the closed period, which prevents pubs showing games at 3pm on a Saturday, a representative for Media Protection Services said it would damage football “as a whole”, if it was not there.

    However, Martin Howe, representing the suppliers, including QC Leisure, said the current situation had “reduced competition and deprived consumers of choice and culture”.

    He argued the FAPL had attempted to use “artificial barriers” around satellite broadcasts that were “disproportionate.” He concluded that the argument the market should be regulated is “entirely contrary to the aim of the (EU) treaty, which is to create a single market”.

    Marie Demetriou, representing Murphy, who was not present in court, argued the decoder cards were not “illicit” devices, as they had been placed on the market by the broadcasters.

    She said the reason the FAPL were using the barriers was to “maximise revenue”. “This is not justification for serious infringement of free movement,” she said.

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