Television without frontiers...key decision

Sponge Bob

I know a character who owns a small pub and his two biggest operational costs are Sky Sports and Rates. He will love this.

http://www.bbc.co.uk/news/business-15162241

Karen Murphy had to pay nearly £8,000 in fines and costs for using a cheaper Greek decoder in her Portsmouth pub to bypass controls over match screening.
But she took her case to the European Court of Justice.
The ECJ now says national laws which prohibit the import, sale or use of foreign decoder cards are contrary to the freedom to provide services.

It said national legislation, which banned the use of overseas decoders, could not "be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums".

flutered

thankfully she got the result, it also means that more than soccer is advailable at a reasonable price to the masses, or will $ly just jack up the price to all providers ?. interesting times ahead.

rlogue

It's not just pubs who will benefit from this. The European Court has specifically stated that individuals are entitled to take satellite services from other EU jurisdictions and use them in their home countries.

Now how could this possibly apply to Ireland??

Tony

Strange the guardian has a different take on this ?

"However, the court ruled against the bid by Karen Murphy, the landlady of the Red, White and Blue pub in Portsmouth, to be allowed to use a Greek decoder card to show live Premier League matches to pub goers at much cheaper rates than BSkyB charges commercial premises in the UK on copyright grounds.

The ECJ said the transmission in a pub is a "communication to the public", which means that without the permission of the FA Premier League Murphy is in breach of the copyright directive. This directive would not stop individuals buying foreign decoder cards for domestic use."

I will have to look at getting something for my house i think

Sponge Bob

I think they decriminalised or desanctioned what the Pub Landlady did...without clearly deciding whether a content owner themselves could take a civil case against said Pub Landlady or not. She cannot be criminally prosecuted for it.

What one does in the privacy of ones own home may be neither sanctionable, prosecutable or actionable.

That may be the best way of describing the two different scenarios.

rlogue

This decision has wide implications for private home users. It effectively means an Irish person can obtain a Sky Ireland sub and now legally and openly use that sub anywhere within the EU.

jmcc

rlogue wrote: »

This decision has wide implications for private home users. It effectively means an Irish person can obtain a Sky Ireland sub and now legally and openly use that sub anywhere within the EU.

And vice versa with other Pay TV operators. This is going to cause panic in Pay TV companies EU wide. It could, hypothetically, legitimise Grey Market subscriptions and mean that Sky could advertise in other markets. The legislation covering Conditional Access/Pay TV really concentrated on commercial rather than individual use.

Regards...jmcc

Sponge Bob

The actual ruling is here

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docdecision=docdecision&docop=docop&docppoag=docppoag&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&radtypeord=on&typeord=ALL&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=&domaine=&mots=satellite&resmax=100&Submit=Submit

It is LOooooOOOOOng and Intricate. and refers to 4 directives, 4 articles in the Nice Treaty ( TFEU) and some cases.

1 These references for a preliminary ruling concern the interpretation of:

– Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ 1998 L 320, p. 54; ‘the Conditional Access Directive’),

– Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15; ‘the Satellite Broadcasting Directive’),

– Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) (‘the Television without Frontiers Directive’),

– Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10, corrigendum at OJ 2002 L 6, p. 70; ‘the Copyright Directive’) and

– Articles 34 TFEU, 36 TFEU, 56 TFEU and 101 TFEU.

2 The references have been made in proceedings between Football Association Premier League Ltd (‘FAPL’), NetMed Hellas SA (‘NetMed Hellas’) and Multichoice Hellas SA (‘Multichoice Hellas’) (collectively ‘FAPL and others’) and QC Leisure, Mr Richardson, AV Station plc (‘AV Station’), Mr Chamberlain, Mr Madden, SR Leisure Ltd, Mr Houghton and Mr Owen (collectively ‘QC Leisure and others’) (in Case C-403/08), and between Ms Murphy and Media Protection Services Ltd (‘MPS’) (in Case C‑429/08), concerning the marketing and use in the United Kingdom of decoding devices which give access to the satellite broadcasting services of a broadcaster, are manufactured and marketed with that broadcaster’s authorisation, but are used, in disregard of its will, outside the geographical area for which they have been issued (‘foreign decoding devices’).

Section I is boring, Section II contains the questions sent to Europe for decision.

Section III is the judgement based on I and II

I extract a few key points.

88 It is true that the actual origin of the obstacle to the reception of such services is to be found in the contracts concluded between the broadcasters and their customers, which in turn reflect the territorial restriction clauses included in contracts concluded between those broadcasters and the holders of intellectual property rights. However, as the legislation confers legal protection on those restrictions and requires them to be complied with on pain of civil-law and pecuniary sanctions, it itself restricts the freedom to provide services.

This gives the UK legislation the toe. Next up is copyright.

96 FAPL cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works.

97 To be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation (see, to this effect, Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraph 37).

This would tend to differentiate between a sport service and a movie service, for example. A Movie would enjoy copyright. A sports right holder or reseller...no.

However some sports, eg hurling in Ireland are different so they comment on FTA by law sports.

101 In this regard, it is to be noted that, under the second subparagraph of Article 165(1) TFEU, the European Union is to contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.

102 Accordingly, it is permissible for a Member State to protect sporting events, where appropriate by virtue of protection of intellectual property, by putting in place specific national legislation, or by recognising, in compliance with European Union law, protection conferred upon those events by agreements concluded between the persons having the right to make the audiovisual content of the events available to the public and the persons who wish to broadcast that content to the public of their choice.

This bit may differntiate between a rights holder in another EU country ( not the UK) an say Albania

115 None the less, here such a premium is paid to the right holders concerned in order to guarantee absolute territorial exclusivity which is such as to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference to which it gives rise are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market. In those circumstances, that premium cannot be regarded as forming part of the appropriate remuneration which the right holders concerned must be ensured.

116 Consequently, the payment of such a premium goes beyond what is necessary to ensure appropriate remuneration for those right holders.

Then there is the individual right to 'greyness'

25 In light of all the foregoing, the answer to the questions referred is that, on a proper construction of Article 56 TFEU, that article precludes legislation of a Member State which makes it unlawful to import into and sell and use in that State foreign decoding devices which give access to an encrypted satellite broadcasting service from another Member State that includes subject-matter protected by the legislation of that first State.

b) Use of foreign decoding devices following the giving of a false identity and a false address and use of such devices for commercial purposes (Question 8(c) in Case C‑403/08 and Question 6(ii) and (iii) in Case C-429/08)

126 By their questions, the referring courts ask, in essence, whether the conclusion set out in paragraph 125 of the present judgment is affected by the fact, first, that the foreign decoding device has been procured or enabled by the giving of a false identity and a false address, with the intention of circumventing the territorial restriction at issue in the main proceedings, and second, that it is used for commercial purposes although it was restricted to private use.

127 So far as concerns the first circumstance, it is admittedly liable to produce effects in the contractual relations between the purchaser who has given the false identity and the false address and the person supplying the foreign decoding device, who may in particular claim damages from the purchaser should the false identity and the false address given by the latter cause him loss or render him liable to a body such as FAPL. On the other hand, such a circumstance does not affect the conclusion set out in paragraph 125 of the present judgment, because it has no impact on the number of users who have paid for reception of the broadcasts.

128 The same is true of the second circumstance, where the decoding device is used for commercial purposes although it was restricted to private use.

Messy bit on time shifting or recording vs live. I have a headache now

176 In the main proceedings, the temporary acts of reproduction, carried out within the memory of the satellite decoder and on the television screen, form an inseparable and non-autonomous part of the process of reception of the broadcasts transmitted containing the works in question. Furthermore, they are performed without influence, or even awareness, on the part of the persons thereby having access to the protected works.

177 Consequently, those temporary acts of reproduction are not capable of generating an additional economic advantage going beyond the advantage derived from mere reception of the broadcasts at issue.

178 It follows that the acts of reproduction at issue in the main proceedings cannot be regarded as having independent economic significance. Consequently, they fulfil the fifth condition laid down in Article 5(1) of the Copyright Directive.

and

210 Consequently, the answer to the question referred is that the Satellite Broadcasting Directive must be interpreted as not having a bearing on the lawfulness of the acts of reproduction performed within the memory of a satellite decoder and on a television screen.

Feckin massive judgement though, I'd say the meeja lawyers in the west end are fair clocking up the meters all day and all week.

Not forgetting the squabbling about its implications on Digital Spy either.

http://forums.digitalspy.co.uk/showthread.php?t=1432490&page=9

Minstrel27

flutered wrote: »

it also means that more than soccer is advailable at a reasonable price to the masses, or will $ly just jack up the price to all providers ?. interesting times ahead.

Sky don't sell the Premier League rights. If they jack up the prices for their own customers then they might see a loss of subscribers.

mike65

How much (big) is a dish for Greek TV again?

Minstrel27

mike65 wrote: »

How much (big) is a dish for Greek TV again?

Greek TV can be found on Hotbird so a massive dish is not needed at all. I used to use a Sky minidish for Hotbird in the south east

Sponge Bob

I can see the Greeks being told to crank up a spot on Ka Sat for themselves I can, and another for the Albanians etc!

byte

That'd be a very sad day.

Then instead of paid subscriptions (albeit "foreign") people could maybe start relying more on webstreaming, instead of going back to Sky... where nobody legitimately wins.

Keith186

I thought this was already completely legal for households and the question was just over the use of it in the pub?? There's plenty of talk on this forum about it for years.


Anyway I've heard on the radio that in the EU but outside the UK they only get 10% of their revenue so it's not a big a blow as it's seen to be.

The actions the FA could take would be to charge the same price to all of EU as they do with the UK and just have less customers outside the UK. Another idea mentioned was that they would not give the rights to any Saturday 3pm matches at all so people in the UK can't see them. I can only see this happening if there is an effect on attendances.

And finally, does this mean we can buy cheap booze from Greece like you can buy your subscription card? Of course not. unfortunately . The free movement of goods and services does not apply when there's excise duty to be made :mad:

Minstrel27

Keith186 wrote: »

The actions the FA could take would be to charge the same price to all of EU as they do with the UK and just have less customers outside the UK.

They would have no customers. Nobody in their right mind would pay the same as Sky/ESPN for a foreign league.

MisterAnarchy

Minstrel27 wrote: »

They would have no customers. Nobody in their right mind would pay the same as Sky/ESPN for a foreign league.

Except the Irish perhaps ,who pay more then the British themselves .:)

200motels

MisterAnarchy wrote: »

Except the Irish perhaps ,who pay more then the British themselves .:)

Now you said it.

Minstrel27

MisterAnarchy wrote: »

Except the Irish perhaps ,who pay more then the British themselves .:)

I was referring to tv channels

MisterAnarchy

Minstrel27 wrote: »

I was referring to tv channels

So was I.
Sky Sports in the Uk is £20 extra per month,its 34 euro here ,not to mention the extra markup for HD.
I know ESPN has been bundled in with the sports here lately but its still cheaper in the Uk to pay for it seperately .
Alot of people in Ireland would prefer to pay the equivalent of £20 for just Sky Sports.

According to you and most logical observers we should pay less for a foreign league not more then the primary market.Its farcical .

Tony

Unless I'm mistaken Minstrel is referring to broadcasters.

icdg

Sponge Bob wrote: »

I think they decriminalised or desanctioned what the Pub Landlady did...without clearly deciding whether a content owner themselves could take a civil case against said Pub Landlady or not. She cannot be criminally prosecuted for it.

Since the substantive proceedings against Ms Murphy are in fact a criminal prosecution, it will be interesting to see if the High Court agrees with you when the case returns to it. In fact it will be the High Court's (or to be specific, Stanley Burnton LJ and Barling J) interpetation of the ECJ's ruling that will be key in how it applies in England and Wales (and, since the Irish courts regard England and Wales judgements as being of "pursausive influence", effectively in Ireland too). Particularly when the media have come up with so many different interpetations. That case is still sub judice so lets not comment on it.

Its an interesting judgement and like most ECJ judgements, not exactly written in the most comprehensivable langauge. But this is what I make of it (these translate to the points in the operative part of the judgement)

1. The Directive doesn't define foreign decoders procured through false means as illicit devices.

2. It doesn't make it illegal for States to legislate against them. (As will probably end up being the case if broadcasters cannot enforce these restrictions themselves).

3. It is illegal for States to enact legislation prohibiting foreign broadcast services from marketing themselves in that State. (Note: there is no such legislation in the UK or Ireland. It is decisions of the individual broadcasters themselves not to market themselves in the UK and Ireland).

4. (and this is the biggie) It is illegal for rights holders and broadcasters to conclude agreements prohibiting the broadcaster from marketing itself in another State.

(5 & 6 not really relevant).

7. Showing a football match in a pub is a public performance.

Really its number 4 that's the biggie. If that's a correct interpetation of the ECJ's ruling it will destroy the current fragmentation of the market for television. The long term impact of that would be to create a single broadcasting market. That unfortunately is likely to make rights for major international sporting events unviable for public broadcasters to purchase unless they do it through the EBU.

Judgement of the ECJ:

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&jurcdj=jurcdj&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALLTYP&numaff=&ddatefs=28&mdatefs=9&ydatefs=2011&ddatefe=5&mdatefe=10&ydatefe=2011&nomusuel=&domaine=&mots=&resmax=100&Submit=Rechercher

And the original judgement of Stanley Burton LJ in the High Court:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1666.html&query=Murphy+and+v+and+Media+and+Protection+and+Services&method=boolean

Minstrel27

Tony wrote: »

Unless I'm mistaken Minstrel is referring to broadcasters.

Indeed I was. I worded it badly.

A French, German, Italian or Polish broadcaster is not going to pay anywhere near what Sky and ESPN paid. The reverse will also be true. German Bundesliga rights for example will cost Sky Deutschland a lot more than what they would cost Sky Italia or Eurosport.

The FA Premier League will always be cheaper to broadcasters from outside of the UK.

200motels

Why is then that here in Ireland no one has bought the rights to show all the Premier League matchs surely with our population it wouldn't be that expensive. Or am I missing something.

watty

rlogue wrote: »

This decision has wide implications for private home users. It effectively means an Irish person can obtain a Sky Ireland sub and now legally and openly use that sub anywhere within the EU.

No it doesn't. Completely different issue. The seller is also allowed to limit sales by Geographic area. This issue was about a 3rd party criminalising purchases, not about sales to anywhere. For example Nova in Greece themselves can legitimately sell to Greek addresses only. This also applies to all EU Mail order. You can't differentiate on basis of Nationality but the Seller can limit sales area. Conversely because the Swiss are not in EU they can limit their service to Swiss Nationals only, but in any country. That option isn't available to any EU broadcaster.

The Irish content on Sky is not being sold by RTE, TV3, TG4. It's not an International Service. It's being supplied free only for Sky to distribute to Irish Geographic customers.

It's not criminal and never has been to use a Sky Ireland viewing card outside Ireland. But it contravenes the Contract between customer and Sky to use it that way so they can terminate card. They can't get you prosecuted and never could. The Contract between Irish Broadcasters and Sky will require Sky to Encrypt and take "reasonable" steps to limit sales to Irish Addresses. That is not changed by this rule either.

If an EU Company wants to sell their subscription anywhere in EU, there is nothing to prevent them in Criminal Law and never has been. All the ruling does is affirm that and confirm that "local" laws can't be enacted to stop people buying "Foreign" subscriptions.

But the Subscription provider can decide to only sell to certain areas. As is the case with many EU products and Services.

watty

200motels wrote: »

Why is then that here in Ireland no one has bought the rights to show all the Premier League matchs surely with our population it wouldn't be that expensive. Or am I missing something.

TV3 really has no money. They can't afford premium content
TG4 isn't going to buy it.
RTE is broke spending on DTT rollout etc.

So there is no-one in Ireland that can afford the presumably cheaper rights. Also Sky will generally be bidding on UK + Ireland. As over 82% here have pay TV and a high proportion of that is fuelled now by Sky Sports (UPC isn't going to start their own Irish Sports channel, they will buy Sky).

icdg

200motels wrote: »

Why is then that here in Ireland no one has bought the rights to show all the Premier League matchs surely with our population it wouldn't be that expensive. Or am I missing something.

No such package is on offer here. What is offered in the Republic of Ireland are six packages of live broadcast rights each of which is identical to that sold in the United Kingdom and one further package of live matches which consists of 33 Saturday 3pm games. The packages that are mirrors of the UK packages have (by happy coincidence, it would be have been believed - or, some of us suspect, by design) always been sold to the same broadcasters which hold the equivilant package in the United Kingdom.

The net result is that the Republic of Ireland is, as far as Premier League broadcasting rights is concerned, effectively an extension of the UK market albeit with one extra package of 3pm games (which Setanta broadcasts). This is the Premier League's decision. Its also their decision not to make any more than one 3pm game available in Ireland. Broadcasters have been able to nothing about this. However, the ruling may change this when the next round of TV rights come up in 2013.

TMC99

http://www.bbc.co.uk/news/business-17150054