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Tuesday, 20 April 2010

UEFA qualifies for Europe

It's still only an extempore ruling, but both Lawtel and LexisNexis have picked it up for their subscribers' benefit: Union of European Football Association (UEFA) and another v Euroview, heard by Mr Justice Kitchin (Chancery Division, England and Wales) last Friday, is the latest turn in the fight for the right -- depending on your ideals and personal preferences -- either (i) to preserve and protect expensive investment in the right to control the transmission of encrypted broadcasts of live top-tier football matches or (ii) the right to exploit the single European market for decoder cards that enable such matches to be seen.

This case has some history. The Football Association Premier League was the vehicle through which the 20 English Premier League football clubs competed with one another and harvested the proceeds. The Association organised the filming of Premier League matches and licensed the right to broadcast them, exclusive rights to broadcast the live matches being divided territorially. In 2008 the Association sued Euroview, who dealt in foreign decoder cards and boxes which enabled purchasers (mainly pubs, it seems) to access foreign transmissions of Premier League matches. Said the Association, Euroview infringed its copyright in the broadcasts. The court referred various issues of interpretation of Community law to the Court of Justice for preliminary rulings (see earlier IPKat post here). These questions sought guidance as to, among other things, the proper interpretation of Council Directive 98/84 (the conditional access Directive) and as to whether Euroview infringed section 17 of the Copyright, Designs and Patents Act 1988 (infringement by copying).

The Chancery Division originally joined the Association, the Union of European Football Associations (UEFA) and other parties as claimants for the purposes of the ECJ reference on the basis that similar issues arose with the regard to filming rights of European Champions League matches -- though the ECJ President disallowed UEFA's participation since UEFA planned to commence its own action.

UEFA then commenced this action against Euroview, claiming that the practice of licensing sports rights on a territorial basis, which in breach of the Copyright, Designs and Patents Act 1988, section 298, was seriously threatened by the activities of those who dealt in foreign decoder cards and that Euroview's business was in direct opposition to the sale by UEFA of media rights in the broadcast of live European football to Sky, ITV, Channel Five and ESPN. This being so, Euroview's activities undermined the exclusivity and therefore the value of the rights licensed in any particular territory since whichever broadcaster sold the cheapest decoder cards had the potential to become, in practice, the pan-EU broadcaster. This in turn would mean that broadcast rights in the EU would have to be licensed on an EU-wide basis, thereby resulting in a serious loss of revenue for UEFA and other broadcasters and indeed undermining the viability of the services they provided. The British broadcaster Sky was joined as a claimant.

Euroview in response maintained that it was entitled to rely on the provisions of section 28A of the Coypright, Designs and Patents Act 1988 (making of temporary, transient copies) and on Council Directive 93/83 (the satellite broadcasting and cable retransmission Directiive). At a preliminary stage in the hearing, the claimants applied for an order that questions be referred to the ECJ for a preliminary ruling and that the proceedings be stayed meanwhile, these questions being mainly similar those referred in the Association case. Euroview opposed the application to refer for a preliminary hearing but also sought to stay the proceedings pending the outcome of the Association case.

The issue before Kitchin J was whether, in all the circumstances, questions should be referred to the ECJ for a preliminary ruling. He agreed to allow the application. In his view

* A national court has discretion to refer a matter to the ECJ as a preliminary issue where it is necessary for the resolution of the dispute before it, though the national court must explain why the interpretation is necessary for it to give judgment;
* Since it is generally desirable that the national court define the context or procedure relating to the issue at hand before making a reference,references at a preliminary stage are undesirable;
* Though this action was still at a preliminary stage, it was clear to the national court that rulings on the majority of questions were needed before it could give a judgment;
* The questions to be referred were largely, though not completely, similar to the questions in the Association's action and the request for the reference was not premature since the relevant facts were accepted or assumed;
* A refusal of a reference would deny UEFA the chance to persuade the ECJ that the importation of foreign decoder cards was unlawful;
*Since Euroview would suffer no prejudice as a result of the reference, in a spirit of sincere co-operation and with the overriding objective of doing justice in mind, the relevant questions would be referred to the ECJ.

The IPKat feels that the complexity of the questions posed, together with the likely impenetrability of the answers given by the ECJ and the unpredictable nature of the outcome, make a good argument that UEFA and the national football associations, the broadcasters and the decoders should get together and thrash out an acceptable business solution. That way, the only thing we'll have to fear is a Commission investigation of collusion. Merpel says, some cynical folk would say that far too much money is being ploughed into football and not nearly enough is being spent in Britain's pubs; is Euroview's aim to redress the balance?

Wizzy Woo the footballing cat here
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