Skip to main content

BSkyB goes on the offensive over sports rights

Europe’s position over enforcement of exclusive rights to show sports in each country is still unclear after what appeared to be a landmark victory for an individual pub owner against the combined forces of BSkyB (opens in new tab) and the powerful English Football Premier League.

The case had been simmering for six years ever since Karen Murphy, landlady of a public house in Portsmouth, England, decided to not to pay £8400 ($13,500) a month to UK rights holder BSkyB for screening football matches for her pub customers, and instead imported a decoder to screen the pictures from Greek satellite broadcaster Nova for just £800 a year. Nova has the rights to the matches in its own country, but not for the UK, and the Premier League sued Murphy for breach of copyright. Murphy was convicted by a UK court and ordered to pay costs and fines totaling £8000 for using a foreign decider in breach of BSkyB’s exclusive UK rights, but she subsequently took the case to the European Court of Justice, the highest court of the European Union (EU).

The court ruled that it was not illegal to import foreign decoders and use them to watch sports content from whatever source. This appeared, at first sight, to undermine the whole European model for enforcing rights to sports content on a country-by-country basis, by making it impossible for rights holders to prosecute when matches were shown for viewing in public places such as bars and clubs by decoding a foreign satellite service.

The European Court itself does not have the power directly to overturn court verdicts in EU member states, but its ruling virtually ensured that Murphy’s appeal would be successful. And, accordingly, the original conviction was quashed last week. But far from apologizing, BSkyB and the Premier League have come out with all guns blazing, emboldened by the all-important sub text of the court cases. This is that although it has been established that people are free to use whatever decoder they like to watch video, the actual sports content can still protected by copyright on the basis of logos, graphics, and specific audio, contained within it.

Indeed, in a related test case, the Premier League has established that it retains copyright control over some of the material that goes on screen during matches. So, providing all matches contain some such material, the Premier League can still prosecute pubs and other public places if they screen matches bypassing the exclusive rights holder, which is BSkyB in the case of the UK. As a result, lawyers have been pointing out gleefully that future matches will contain as much material such as logos and anthems that BSkyB can stuff into the content to make sure copyright is covered.

This is a ludicrous situation given that the content’s value lies in the sporting action that is not copyright protected, but is a very big deal for European sports. In particular, the spectacular growth of the Premier League in the two decades of its existence (it was previously called the first division and was much poorer) is the direct result of its largely exclusive partnership with BSkyB. This covers not just extra subscriptions for sports packages paid by domestic subscribers, but also 44,000 pubs, clubs and offices, which pay an average of £1000 per month, equating to around £560 million (almost $1 billion) a year. These fees, in turn, have fed the escalating wages and transfer fees spent on players, leading many people to hope that this test case involving Karen Murphy would finally break BSkyB’s stranglehold over the rights.

This now looks unlikely to happen, just yet at least, with BSkyB now having contacted pubs and clubs, warning them that they could face jail if they screen matches using foreign decoders, for now they would be able to prosecute on the basis of unauthorised presentation of the protected material. It means that, for now, those trying to unseat BSkyB have failed, but this is still not the last hurdle. At the High Court where Murphy’s appeal was upheld last week, the judge stated that other complex issues surrounding the legality of screening matches would be decided at a later date. This story has some way to run.