Decoder cards and the Euro-licence

Although the Advocate General’s opinion in the decoder card cases covers a number of important copyright law points, probably the most striking conclusion is the contract-law point, which has potentially far-reaching consequences in the way rights are licensed in Europe.

FAPL licenses the right to broadcast Premier League games to different broadcasters in different territories. Because the broadcasts are delivered by satellite, the only way of ensuring that each licensee’s broadcast is limited to its territory is to stipulate in the licence that the licensee makes sure that its decoder card is only available in its territory.

The AG says that this contractual term is incompatible with Article 101(1) TFEU because the term has an anti-competitive objective and no exemption applies. She argues that no exemption is possible on the basis of protection of industrial and commercial property because this partitioning of the market is not to protect the right of commercial exploitation (if a Greek card is sold in the UK, FAPL still gets paid – that’s debatable, isn’t it? The Greek broadcaster gets paid but doesn’t FAPL just get a licence fee for the exploitation in Greece?), rather it is to optimise exploitation (FAPL gets more from selling lots of separate licences than one big licence).

The AG acknowledged that the importing of Greek decoder cards might result in FAPL no longer licensing rights in Greece. ‘In this regard,’ she said, ‘it would appear relevant in particular whether alternative marketing models can be developed, as the Commission demands…’ This sounds like an allusion to the Commission’s idea that copyright in the EU could be only licensable in Europe as a whole.

If the ECJ follow the AG, then the effects of this new licensing model will be felt beyond Europe. To begin with, if people start exporting the Greek NOVA card all over Europe presumably it will give viewers access not only to football but to everything else on that service (see illustration). Most of the NOVA Sports + Value package is US TV (in English).

Presumably the effect of having one European territory (and one EU copyright) would be to lead to consolidation of broadcasting among a handful of pan-European broadcasters – which may satisfy economic logic but may not be conducive to nurturing the cultural diversity that is Europe.