A version of the blog post below was first published on the Blackstone Chambers sports law blog: http://sportslawbulletin.org/.
Back in November I blogged on a Financial Times report that the European Commission was about to commence an antitrust investigation into pay-TV services. That investigation was formally announced last Monday, in a statement by Joaquín Almunia, Commission VP for Competition Policy. Continue reading
According to a report in the Financial Times last weekend, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV licensing arrangements. Such an investigation could have significant ramifications for any owners of television rights in sports fixtures (or other content) who seek to maximise their revenues by licensing on an exclusive territorial basis.
The last time similar issues came before the Court of Justice, a rights owner rather than the Commission was on the offensive. In Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd v QC Leisure, Murphy v Media Protection Services Ltd  1 CMLR 29, FAPL was attempting to use criminal and civil law provisions of the Copyright, Designs and Patents Act 1988 to enforce its model of exclusive territorial licensing of satellite TV rights for the Premier League. Mrs Murphy, a publican who had used an illicitly obtained satellite decoder card to show Greek satellite broadcasts of Premier League matches in her Portsmouth pub, famously persuaded the Court of Justice that national legislation prohibiting the import, sale and use of satellite decoder cards from elsewhere in the EU contravenes the free movement rules in the EU Treaties, and that restrictions such as those in the licence agreements between FAPL and its satellite broadcasters, obliging the licensee not to provide decoding devices outside its territory, contravene Article 101 TFEU. Her appeal against conviction (for the offence of fraudulently receiving a programme included in a broadcasting service) was successful. Yet FAPL snatched victory from the jaws of this defeat, establishing in the QC Leisure litigation that activities such as Mrs Murphy’s are actionable as copyright infringement. Continue reading