Tomorrow, the Advocate General of the European Court of Justice (ECJ) is due to pass on her view to the ECJ judges on the case of the Media Protection Services (MPS) v Karen Murphy. The case revolves around Karen Murphy – the landlady of the Red, White & Blue in Southsea – and her use of satellite television. Murphy legally bought a decoder box, subscription card, and had taken out a satellite subscription. However, she bought these not through Sky television, but through Greek broadcaster NOVA. With the ECJ judges due to pass their judgement in three months, what are the likely implications for the landlord and landladies that use foreign broadcasters, the broadcasters themselves, and even the Leagues that sell their rights, if Karen Murphy wins her appeal against her conviction for showing Premier League football through a Greek satellite channel?
The MPS call themselves a “non statutory investigative and prosecution body whose aims and objectives are to combat counterfeiting and the infringement of intellectual property rights at every level.”, and are most well known for this case where they are working on behalf of the Football Association Premier League Limited (FAPL) – which is a company that has been formed by the Premier League clubs, with the aim of protecting the Premier League’s TV rights. The MPS argues that Karen Murphy’s use of NOVA’s services contravenes section 297(1) of the Copyright, Designs and Patents Act 1988 (CDPA). Ms Murphy was charged, and subsequently prosecuted under the the CDPA in January 2007 by Portsmouth Magistrate’s Court, which claimed that on two occasions she:
“… dishonestly received a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme.”
At present, the only people legally licensed by the Premier League to broadcast to the UK are Sky Sports and ESPN. And in that respect, it is fair to say that, in finding a way to avoid paying the charges that Sky Sports charge publicans their corporate prices of hundreds of pounds, often even over £1000 per month, Murphy was intending avoiding to avoid payment to Sky TV, but not intending to get the services for free. However, to suggest that she is doing this ‘dishonestly’ is certainly open to question, considering her transactions with NOVA were legal, and NOVA legally own the rights to broadcast Premier League games. However, s297 was designed to prevent the unauthorised reception of a UK service (as an equivalent for those trying to dodge the licence fee), as opposed to prevent people buying services abroad. In fact, in January 2006 – a year before Murphy was first convicted – James Purnell MP, then Parliamentary Under-Secretary of State for Creative Industries and Tourism in the Department for Culture, Media and Sport, stated in the House of Commons stated in an answer to Lindsay Hoyle (MP for Chorley) that:
“It is not illegal for a pub/publican to subscribe to a foreign satellite channel as opposed to BSkyB and as the DTI have stated nor is it illegal to import decoder cards from the European Union. However, the legality of screening live UK football games carried on that channel depends on how the copyright to those games was sold/distributed (ie whether the foreign channel purchased the rights legally).”
In otherwords, it was not illegal for Ms. Murphy to subscribe to NOVA, and it’s certainly not illegal to import a decoder from Greece. The second sentence also suggests that Ms. Murphy is doing nothing wrong, as NOVA purchased the rights to Premier League football legally (something that has never been in question). However, NOVA would only have the rights to screen football on their own channels in Greece – but broadcasting via satellite is not as cut and dried as broadcasting terrestrially, as satellite transmissions cover a much wider area (the Astra and Hotbird satellite ranges cover most of Europe), and therefore once somebody buys the correct dish, receiver and decoder card(s), they can theoretically receive TV from anywhere in Europe. And that is part of Ms Murphy’s appeal to the ECJ. After all, the ethos of the European Union is freedom of trade for businesses and individuals, and while Sky have a monopoly on satellite broadcasting in the UK, EU citizens are supposed to have the freedom of choice from throughout the EU’s 27 member states. In that respect, the result from the ECJ should be cut and dried, but legal cases very rarely so open and shut – after all, the decision may not come down to the rights and wrongs of the various side’s cases, but the technicalities within them.
Of course, if the MCP, and therefore FAPL, win (assuming it’s not because of a technical issue on the part of Ms Murphy’s team), then it ought to be business as usual, when it comes to television rights and how they are bought and sold, and those that lose out will be those publicans who have shopped around within other EU countries, who would be forced into a choice of Sky Television or no football, as well as those providers whose subscriptions have increased thanks to the increase of subscribers from the UK. However, what happens if Ms. Murphy is successful? In a nutshell it would change the way that TV rights are sold in sport, and therefore could become as important to the TV industry as the Bosman ruling was to the sport it profits so much from broadcasting.
Until the current Premier League TV deals expire in 2013, it would be open season on publicans going abroad, and purchasing equipment and cards from other providers within the EU – who may decide to try and capitalise by increasing their prices, but of course would have to charge the same as they charge their domestic clients. After then, the Premier League (and other leagues within the EU) would have to change the way that they negotiate their TV rights, so that instead of splitting them into domestic and individual foreign counties, the rights would presumably have to be sold EU-wide, and then individual countries outside the EU. And who get the biggest benefit from that? The broadcaster who could buy the EU-wide rights, and broadcast them to the most nations. After all, the most value comes from the nation that the League is based in – so the rights to the additional nations within the EU would not raise the price of the current ‘domestic’ rights too far, and any broadcaster that buys the rights to (say) the Premier League, would also buy the rights to sell them to France, Germany, Italy, Spain and the other EU nations. And any broadcaster in the position to broadcast to more than one nation could be quids in, with the best placed broadcaster being – British Sky Broadcasting (Sky).
Sky are the biggest satellite provider to the UK, and their largest shareholders (Rupert Murdoch’s News Corporation) are also the largest shareholders in the largest satellite providers in Italy (Sky Italia), Germany (Sky Deutschland) and Croatia (b.net), and while the latter aren’t currently a member of the EU, they are due to become members as of next year, before the Premier League’s TV is up for renewal. As a result, successful bids for the Premier League, the Bundesliga and Seria A, would give Sky the opportunity to show the games in four different nations – and if they could also acquire the rights to the Champions League for EU satellite, they would have the ideal opportunity to launch Sport Channels on the satellite networks across Europe that they don’t already hold. Other side affects could mean that the Premier League packages shown in the UK could all find themselves owned by the same broadcaster – as the Monopolies Commission may have prevented the Premier League selling all their packages to Sky, but they have no jurisdiction over the rest of the EU. Even if the Premier League would try and split the packages, b.net could arguably bid for the packages that Sky do not. With so few broadcasters having a foothold in more than one of the major TV markets for football in Europe, the most likely competition for Sky wouldn’t come from the continent, but from the United States, in the form of ESPN, which would explain why they took over the final TV package from Setanta, even though Setanta had clearly made a loss with the same footage – but even then, ESPN have only launched a channel in the UK, although they have done business with the Bundesliga and La Liga, as both are shown on channels in the US. As a result, it’s Sky and their sister broadcasters that are in the best place to profit from such a situation.
In other words, the biggest winners out of the whole deal may not be publicans such as Ms. Murphy, or even consumers in general, but the very people in charge of the service that priced Ms. Murphy out in the first place. Which might explain why Sky’s public comments on the subject, may seem in favour of the MPS/FAPL winning – as a Sky spokesman told the BBC:
“This is primarily a case about how rights are licensed to broadcasters across Europe. While Sky is not a party to this case, we welcome the Premier League’s determination to seek a definitive ruling on this issue.”
However reading between the lines, While they “welcome the Premier League’s determination”, the statement itself is a very neutral one – and maybe that’s the most telling statement of them all.
Follow Twohundredpercent on Twitter here.