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Could football copyright ruling impact on music licensing?

By | Published on Wednesday 5 October 2011

European Union

An interesting case in the European Courts Of Justice could, in theory, have ramifications on music licensing across the European Union.

The case actually relates to football and Sky Sports. A Portsmouth pub landlady called Karen Murphy was accused of copyright infringement for screening football matches in her bar via a Greek TV network (accessed via a satellite TV system not locked to Sky) rather than via Sky Sports, a move which saved her over £10,000 a year in subscription fees.

The Football Association said Murphy was obligated to use Sky to screen football matches in her pub because the company had the exclusive rights to broadcast Premiere League games in the UK, and therefore she wasn’t allowed to use the Greek service over here.

However, some lawyers argued that if the FA was allowed to dictate which European TV services British viewers were and were not allowed to use to watch Premiere League matches, that would breach some very basic rules of the EU regarding free trade across the Union, ie British consumers should be able, should they wish, to access Greek TV services if technology allows (which it does), and protecting the interests of territory specific copyright licenses was no justification to prevent such trade.

Actually, for Murphy’s specific case it’s not 100% clear cut, because showing football games in pubs constitutes a public performance, and there is the possibility that the landlady would need explicit permission from the FA to show elements of its output in public, over and above the permission she already has from the Greek broadcaster, and if that was so, the FA clearly wouldn’t grant that permission.

But what the ruling does mean is that individual football fans able and willing to operate a satellite TV system that circumvents the Sky electronic programme guide, and then willing to watch Greek broadcasts of British football matches, possibly taking commentary from UK radio, can do so without being accused of copyright infringement. And while that may sound like a hassle, it’s possible that entrepreneurs might see a gap in the market to offer a simple way to do all that at a price that undercuts Sky’s consumer subscription rates.

As for music? Well, arguably the ruling means that consumers should be able to shop around across the EU for better deals on digital music in the same way they already can for CDs. So, if the labels licence a French digital music service in theory intending it to only be used by French consumers, they can’t stop British music fans from also accessing it. Or, perhaps, the fact the German collecting society GEMA won’t licence Spotify, shouldn’t stop German music fans was signing up to Spotify UK, licensed by PRS For Music.

Of course, it is already possible to circumvent the IP address restrictions used to lock out foreigners by territory specific content services, though in theory this ruling legitimises that tactic, within the EU at least, which possibly also opens opportunities for entrepreneurs to simplify the process and sell it to mainstream consumers. All of which possibly makes territory specific licences unworkable. Which arguably could act as a catalyst for the music industry to finally crack pan-European licensing, something which, of course, European Union officials have been pushing for some time.

As one of those officials, European Commissioner For The Digital Agenda Neelie Kroes, told The Guardian ahead of the Sky Sports ruling: “If I can buy a music CD online from a company in the Netherlands and have it posted to me here in Belgium, why can’t I buy a digital download from the same company? If I can watch my local team’s football matches using online pay-per-view in one member state, why not in 27? This situation does not make much sense to the man on the street. To be honest, it is not a situation that makes much sense to me. And we need to fix it”.