In early reaction I’ve seen and heard this morning, journalists are keen to stress the complexity of the judgment and that the Premier League may take some comfort from what the ECJ said about its having copyright in certain elements of broadcasts (para. 149):
FAPL can assert copyright in various works contained in the broadcasts, that is to say, in particular, the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches, or various graphics.
I don’t think that comfort is real, though. The ECJ goes on (para. 182) to rule that technical reproduction of these graphics etc. within decoders and receivers falls within an exception
laid down in Article 5(1) of the Copyright Directive and may therefore be carried out without the authorisation of the copyright holders concerned.
As far as the actual showing of the graphics etc. to the pub audience is concerned, it’s true that the ECJ rules (para. 207) that
‘communication to the public’ within the meaning of Article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house.
That appears at first blush to concede to the Premier League the right to sue pubs for breach of copyright for showing their customers copyright elements (the anthem etc.) as part of match broadcasts.
I doubt even that can work for them, though. Article 5.3(i) of the Copyright Directive provides that
Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: …
(i) incidental inclusion of a work or other subject-matter in other material
and section 31(2) of the Copyright, Designs and Patents Act 1988 is an example of just such an exception, making it lawful for Ms. Murphy to communicate to the public those copyright works lawfully included by NOVA in its broadcast. The one tiny crumb remaining might be the right to sue her for breach of copyright for allowing her customers hear the Premier League “anthem”; that’s because of the special position regarding musical works under section 31(3).
But even if the Premier League can prove Ms. Murphy doesn’t show matches with the volume turned down, I doubt they can seriously frustrate the entire purpose of EU internal market law based on attempts to enforce copyright in the anthem alone – however often they decide to play it. Its lawyers may well write letters trying to convince firms and consumers that they’re still taking legal risks by using foreign decoders, and many people may be convinced for a time at least. That time will be very commercially valuable for the Premier League. But I expect it to last only as long as it takes the ECJ to rule on the matter again.
