Technology and copyright protection
8th November, 2011
A recent case regarding telecast rights and copyright protection has thrown up new questions on how far technology can be used to protect or circumvent copyright provisions. The issue involved is the broadcast of the English Premier League matches by the landlady of a pub in Portsmouth. Instead of subscribing to Sky/ESPN which has the telecast rights for the matches in the UK, she chose to subscribe to a Greek satellite service provider and used a foreign decoder to access the content telecast [Football Association Premier League and Others v QC Leisure and Others; Karen Murphy v Media Protection Services Ltd – ECJ Press Release No. 102/11, dated 4th October 2011].
The holder of broadcast rights in UK had a few objections. They claimed copyright over the telecast - match as such as also the opening ceremony. Further they contended that terms of the contract forbid satellite service providers from selling decoders outside their license territory. The business model obligating the telecast right holders to black out games from 3-5 pm and charging a premium for the content has, however, been called into question.
As far as the copyright question was concerned, the European Court of Justice (ECJ) held that the matches by themselves cannot be copyrighted since sporting events cannot be considered an author’s own intellectual creation. Copyright can exist in the opening video sequence, the Premier League anthem and pre-recorded highlights alone. In respect of the same, broadcast using foreign decoder would amount to ‘communication to the public’ and hence an infringement. However, the sale of foreign decoders outside the license territory cannot be declared illegal. Such partitioning and artificial price difference among various national territories are irreconcilable with the fundamental aim of creation of internal market in Europe.
According to the ruling, while a person can be given sole exclusive license to broadcast copyrighted content in a jurisdiction, cross border provision of services cannot be prohibited by a contract. The issue, now having been remanded, will be considered by an English Court.