The long-awaited Murphy judgment was handed on 4 October and it has been heralded in the press as a triumph for David (in the form of pub landlady Karen Murphy) over Goliath (in the form of FAPL and Sky). But is this really such a stunning victory, or is it a bit more complicated?
The background of the case is as follows. Sky had an exclusive deal with the FAPL to broadcast certain matches in the UK; those matches were also sub-licensed to other broadcasters in respect of other territories. The contractual arrangements sought to ensure that each broadcaster supplied the broadcasts only to its own territory. Satellite broadcasting footprints do not match national boundaries, so it was technically possible to receive in the UK broadcasts from other member states. The question in this case was whether it was legal and, if so, could the broadcasts be displayed in the pub setting?
The issues lie against a complex network of secondary EU legislation on satellite broadcasting and on copyright, bearing in mind the Treaties themselves that aim to create a single market. The issues can be broken down into pairings, which show distinctions in the analysis itself, or in terms of the consequences of that analysis:
- satellite transmission and decoder issues v. copyright issues;
- access to the signal v. the right to watch and present the programmes;
- private use v. commercial use;
- works protected by copyright v. those that are not.
As far as satellite transmission and decoder issues, Murphy has scored a significant win, which will benefit not just pub landlords, but those who subscribe to satellite television services generally. Using a foreign decoder does not turn an otherwise legal decoder into an ‘illicit device’ and legislative action aimed at the protection of broadcasters rights must be proportionate.
The picture is more complicated as regards the copyright issues. Here we must distinguish between the private use of the signal – just watching – and a commercial use, such as in the Murphy case, when the programme is made available to others. As regards the former, insofar as the process of displaying the programme on screen triggered the reproduction right, benefit could be claimed of an exception, so that the works could be shown without the permission of the author. Again, this benefits the private viewing public. The commercial use raises further questions about whether allowing a group of people in a pub to watch the television infringed another right: that of communicating to the public. The ECJ held it did. This will then affect pub landlords, but not private viewers, insofar as the programme is copyrightable. This brings us to our final sets of distinctions; the ECJ determined that the matches were not copyright works; it also did not address the point the AG made about the potential difference in protection between those transmission which were ‘fixed’ and those which were not (e.g. live recordings). While this might mean communicating to the public right does not attach to them, it could attach to some other elements of the programmes – the (recorded) music and graphics, for example. Insofar as these are not severable, then the matches themselves should not be made available to the pub audience.
The ramifications of this judgment for the FAPL and satellite broadcasters are not yet known. While it may be that there are technical solutions so as to maximise the protection awarded by the right to communicate to the public (watermarking the digital image of the game, perhaps) to limit in-pub use, it is clear that the industry will have to indulge in a re-think as the home audience can benefit from the ruling on decoders. It is not just football matches that are affected, but premium content too, such as box office films, with repercussions perhaps to the film industry and their territorially controlled release windows for first run films. Whatever the initial reactions of the industry, the matter is clear for the ECJ: calculate your pricing structure so as to allow for the possibility of non-domestic decoders being used. Copyright cannot be used to partition the EU market so strongly.
Lorna Woods will be speaking along with Jeremy Phillips, Daniel Wilsher, and Jonathan Griffiths at a panel discussion on the Murphy decision at City University on 11 October.