On 4 October, the ECJ issued its long-awaited preliminary ruling in the Karen Murphy case, on the restriction of broadcasting rights on a territorial basis. The judgment is likely to have a significant impact not only on the way in which the broadcasting rights for Premier League football matches are sold in Europe, but also on rights protection more widely.
The Premier League requires broadcasters licensed to transmit its programmes to undertake to prevent the public from receiving broadcasts outside the area for which they hold their respective licences. The Premier League brought a number of cases against both suppliers of foreign satellite decoder cards, and pub owners who used the foreign decoder cards to show broadcasts transmitted by licensees in other territories.
The UK High Court asked the ECJ to consider a number of questions. Of particular interest from a competition perspective was the question of whether the clauses of an exclusive licence agreement obliging the broadcaster not to supply decoding devices outside its licensed territory breached Article 101. The Court concluded that, by granting the broadcaster absolute territorial protection, they did breach Article 101 and that they were not justified under Article 101(3).
Importantly, the Court also held that rights holders do not have the right to demand the highest possible remuneration for those rights, and that it was 'irreconcilable' with the fundamental aim of a single internal market within the EU for broadcasters to pay a premium to rights holders so as to guarantee absolute territorial exclusivity. For further detail on the ruling, see our Alert.
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