Battle over right to screen football matches in pubs has no winners, despite appearances
‘Lose-lose” was how the European court of justice described its ruling this morning in the unlikely battle between an ordinary Portsmouth publican and the gold-plated might of the Premier League. But, in the end, there had to be a winner, and it was not going to be Karen Murphy from the hopefully named Red, White and Blue.
The first loser, according to the court, was the Premier League. Astonishingly, the ECJ delivered a hammer blow to the notion that Premier League broadcast rights can be sold on a country-by-country basis within the EU, the simple basis on which television has operated since the medium was invented. It ruled that the “system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity” was nothing short of being “contrary to EU law”.
So, the first part of the ruling clearly allows, determined members of the public to abandon Sky and switch to another European satellite broadcaster. Many, including Nova from Greece, the broadcaster once optimistically used by Murphy, before all this court case started, have the rights to show all 380 Premier League games a year, 3pm kick-offs and all, with English commentary. Immigrants and expats have been doing this for years: many Britons in France have Sky subscriptions, while housing estates around Britain are festooned with white satellite dishes hooked up to Greek or Portuguese services – although Nova, at £44.71 a month is actually more expensive than Sky Sports, which starts at £40, the kind of figure likely to dampen demand.
Suddenly, the Premier League has just lost the basis upon which it, and every other sports body, has generated income for years. Its TV rights are worth nearly £500m a year internationally, with just over £100m of that coming from Europe – which compares with the £600m a year it generates from Sky and ESPN in the UK. Nor is the ruling just about sport: it could affect the way all television programmes are sold across Europe – films, TV shows and any other content. So worried, indeed had the League been about the prospect that Richard Scudamore, its chief executive, had already begun to draw up a contingency plan. His thinking was that the next time the League would have to sell its rights on a pan European basis, to just one broadcaster, which would have been almost certainly Sky.
Yet, it didn’t take long before the league realised it might not have to take such a drastic measure. The second of the ECJ’s losers on Tuesday was Murphy herself. On the face of it her case was reasonable – Sky, she said, wants to charge publicans like her “£800 a month” to show football, a level she couldn’t afford, which is why she bought a consumer subscription to Nova in the first place. Faced with the question of whether Sky be allowed to charge so much, – the business is worth an estimated £200m a year – the European court chose to side with the Murdoch-affiliated broadcaster.
The ECJ concluded that Murphy and any publican like her would be breaching the copyright of the Premier League, by going Greek, so to speak. Although the judges were clear that there can be no copyright in live coverage of the football match itself, there is copyright in “the opening video sequence or the Premier League anthem” or even the league’s logo. Only the league can decide whether you have the right to transmit those to a paying audience, and the number of publicans who have been prosecuted by the League for using foreign satellite services will testify that the answer from the League will be no.
Indeed, the sanguine Premier League was already noting that it will be easy to stop publicans using its footage without permission by ensuring that its logo is on screen all the time, or its theme music played every time a replay is aired. It took comfort in the fact that the European court, in effect, distinguished between “private and commercial use” – and most likely, the football body will carry on selling its television rights as before. In truth, the league’s real problem is with internet piracy – while it knows that few people want to sign up to a foreign broadcaster. Otherwise, for all the talk of lose-lose, it is the established powers of football, the Premier League and BSkyB, that won.