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Copyright and decoders

The European Court’s decision to allow persons to buy and use satellite decoders from countries outside their country of residence has been hailed with nothing short of the celebratory peal of bells.

Broadcasts are recognised as copyright-able works and are therefore protected by copyright law
- Jeanine Rizzo

My focus shall be on the copyright issues discussed by the same court. The decision in question is the ECJ case “Football Association Premier League Limited & Others vs. QC Leisure & Others”.

The case is set against the background of UK restaurants and bars who, in order to show Premier League football matches, bought satellite decoders and cards which allowed them to receive satellite channels broadcast in other member states at a subscription less expensive than that payable to the UK service-provider.

Broadcasting licences are such that they contractually grant territorial exclusivity to the individual broadcasters in tandem with the copyright as well as the neighbouring right at copyright which belongs to broadcasters.

The Football Association Premier League alleged that their rights protected by copyright law were infringed by those persons who were displaying the works on screen, publicly performing the works to the public. The plaintiffs contended that if there were no protection of the territorial exsclusivity, the holder of the intellectual property rights would no longer be able to obtain the appropriate license fees, with the live sporting event thereby losing part of its value.

The defendants, on the other hand, argued that this would amount to a partitioning of the market. This is where the sublime interaction between competition law and intellectual property rights happens. Intellectual property rights being a monopoly granted to players in a free and open market. They are restrictions on the fundamental freedoms granted by the Treaty forming the basis of the EU. For this reason, the monopolies granted by intellectual property law should be doled out and administered carefully.

The Courts of Justice of the European Union considered that football matches per se are not works protected by copyright, in the same way as books or films are protected by copyright. And neither are the football matches protected by any other intellectual property right at EU law. At a national level, they do however “transform”, as the court put in, into intellectual property subject-matter by “agreements concluded between the persons having the right to make the audio-visual content of the events available to the public”. So the football match in itself is not protected, but the rights to the event are protected by intellectual property rights.

Moreover, broadcasts are recognised as copyright-able works and are therefore protected by copyright law. In this way, the fixation of the broadcast and the communication to the public of the broadcast is protected.

The court was also asked to consider whether a UK television screening of the match would infringe the reproduction rights of the copyrighted broadcast since temporary copies are being made within the memory of the satellite decoder in order for the decoder to work. The court found that all modern television sets and set top boxes had to make these ephermeral and transient reproductions in order to receive and show any broadcasts.

To understand this, think of loading a DVD into a DVD player – the player is making small, temporary copies of the content on the DVD in order to play the content smoothly. Therefore the technology of the DVD player in itself requires these transient copies to be made. These are the copies the court is here examining. The court held that these transient reproductions may be made in this context without the need of the authorisation of the copyright holder concerned. In fact the court was moved to comment further that stopping broadcasts on this ground would impede and paralyse the actual spread and contribution of new technologies.

The court ultimately decided that agreements between the intellectual property rights owner and the broadcaster which oblige the broadcaster not to supply decoding devices to users outside the territory go against the principle of free competition. It must be noted, however, that the people involved in this case bought legitimate decoders and cards in other EU member states, and were therefore found by the court to be acting within the limit of the law.

www.fenechlaw.com

Dr Rizzo specialises in entertainment and intellectual property law at Fenech & Fenech Advocates.

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