Ahead of European Court Ruling on the Karen Murphy Case - Interesting Observations   by 'Gbenga Bamodu

in Law / Intellectual Property    (submitted 2009-12-15)

While the world eagerly awaits the ruling of the European Court on the well documented Karen Murphy case - on reference by the English courts {Murphy v Media Protection Services Ltd [2008] All ER (D) 206 (Jul); [2008] EWHC 1666 (Admin)} - a couple of interesting points are worthy of entertaining diversion.

In brief, the case concerns the use of a Greek subscription card to receive and air English premiership football by a publican, instead of via a subscription to BSkyB who are the principal UK rights holders. In essence, the English courts concluded, on the basis of English law alone, that the only lawful way to receive English Premiership football in the UK by satellite television is through a subscription to BSkyB; presumably, this will also extend to other partial rights holders such as ESPN now and Setanta previously. However, the case was referred to the European Court for a decision on the issue of whether English law on the matter is consistent with European Union provisions on free movement of goods and services.

One interesting observation on the point so far is that while the decision of the English courts, pending the European ruling, is that it is unlawful to receive English Premiership football by a foreign subscription card, this does not necessarily make the use of the foreign subscription card per se unlawful for all purposes. A subscription card usually allows access to a range of content and some of such content will not be subject to the same restrictions as English Premiership football. This leads to an amusing scenario where the holder in the UK of say a Greek subscription card (e.g. Nova) is able to watch generic entertainment programmes on the card but must not use the same card for an 'ordinary' entitlement to watch English Premiership football. It should be pointed out that the contractual restriction by subscription card providers that viewing is limited to a particular country is only of limited relevance here as that is out-with the issues decided so far by the English courts. Secondly, that type of restriction in itself is an issue that might be increasingly difficult to maintain with the increasing mobility across European member states of European nationals. Some of these EU nationals have homes in more than one EU member states and it is not uncommon for them to transport their satellite receivers and subscription cards across countries.

The second and related observation is that in relation to the Karen Murphy case, the focus has been on the fact that the reception and airing of English Premiership football in the case via the foreign satellite card happened on a commercial premises. However, it seems that the consequences of the English decisions, again pending the European ruling, extend to purely domestic use of foreign subscription cards --- to the extent that they are used to watch English Premiership football within the UK instead of subscribing to BSkyB/ESPN. It may be that BSkyB, the FA Premier League and their agents have not so far been pursuing domestic users of foreign football subscription cards. The fact remains that technically, in light of the Karen Murphy case so far, a private person who uses a foreign subscription card lawfully generally may be potentially guilty of an offence if s/he uses the same card to watch an otherwise 'ordinary entitlement' of English Premiership football on the card. Again, in light of increasing cross mobility of European nationals, it is questionable whether such a legal position is sustainable in the long term. Indeed, particularly depending on the European Court's ruling on the Karen Murphy case, it may be that a review of geographical licensing arrangements is unavoidable in the longer term.

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