Nine years after Premier League v. Murphy, Austrian Supreme Court revisits football screening in pubs
Football fans everywhere are still sipping their drinks in front of TV screens (featuring games in empty stadiums with fake crowd noises), waiting to be allowed into stadiums again. Watching the game with friends at a local pub is not quite the same as before, since patrons must worry about social distancing rules – and (at least some) bartenders about being sued for copyright infringement in the process.
A case recently published by the Supreme Court of Austria (Oberster Gerichtshof) relates to whether an Austrian pub that showed German Bundesliga matches to its patrons via a TV signal broadcast from a foreign country "with commentary in Arabic and with the logo of the foreign broadcaster being visible" should have sought a license from the rights holder.
If this story sound familiar to Kat readers, it is because similar facts were featured in a landmark CJEU decision of 2011, C-429/08 "Premier League v. Murphy" (see the relevant Katpost here) There, a UK bartender (Ms. Murphy), used decoding equipment purchased in Greece to screen UK Premier League matches to her patrons, saving several hundred pounds per month (compared with purchasing the same subscription in the UK).
In Murphy, the CJEU mostly sided with the bartender, (i) criticizing the Premier League's licensing model as anticompetitive, (ii) rebuking national legislation prohibiting the import or use of foreign decoder cards as contrary to the freedom to provide services, and (iii) declaring that sporting events do not qualify as "works" for the purposes of copyright in the European Union.
Nonetheless, the CJEU qualified the opening sequence, the graphics and pre-recorded highlight films shown in the broadcast as copyrightable subject matter, and the screening of transmissions to pub patrons as a "communication to the public" within the meaning of the Infosoc Directive. Subsequently, the Court of Appeal of England and Wales dismissed the case against Ms. Murphy entirely (a Katpost with the full reasoning is available here).
The Austrian case summarized below differs only in a number of details from Murphy (see below), yet it reached a different outcome. The Austrian bartender was permanently enjoined from featuring Bundesliga games in the pub and ordered to pay damages and to arrange for publication of the decision in an Austrian daily newspaper. How did the Austrian court reach the opposite result?
Part of the answer is that broadcast licensing has evolved in the wake of Murphy and, as a result, the Austrian court did not have to opine on the same issues as the CJEU nine years earlier. Murphy was a case about competition law and free movement of goods as well as about copyright. The Austrian Supreme Court only needed to deal with the latter issue.
Pre-Murphy, broadcast license agreements used to include strict contractual prohibitions for offering services to customers outside of the licensed territory. The CJEU took issue with these provisions as contrary to EU competition law. To address the concerns of the CJEU, most right holders removed such clauses.
As a result, thanks to the change in licensing practices, no arguments related to competition law or free movement of services were on the table, the Austrian court only needed to deal with the copyright issue.
The Austrian Supreme Court considered that the recording of a football match constitutes copyrighted subject matter. Contrary to the CJEU, which focused on the fact that the match does not meet the definition of a copyrighted work, the Austrian court indicated that the recording of the match certainly does:
It is undisputed that the footage screened by the Austrian pub had been licensed to the claimant, i.e. the defendant was not showing footage of the same match prepared by a third party. As such, the footage constitutes a work under copyright and its screening a communication to the public, whether or not it is combined with the original comments. The defendant does not hold a license from the rights owner or its licensee, which is why the Court confirmed the finding of copyright infringement.
First, it is a welcome development that the Austrian court acknowledged that the footage of a sports event constitutes a protected work under copyright law based not on whether the players themselves were performing a copyrighted work, but on the filming choices made by the film director.
Second, this case illustrates the importance of national law in copyright cases in Europe. Let's remember that the CJEU did not exonerate Ms. Murphy from copyright infringement. It was the Court of Appeal of England and Wales that did so in a subsequent ruling based on Section 72(1) of the UK Copyright Designs and Patents Act (CDPA), which explicitly allows the "showing or playing in public of a broadcast to an audience who have not paid for admission" (see also here). The Austrian pub's fate was sealed not by Murphy, but by the absence in the Austrian Copyright Act of a provision similar to Section 72(1) CDPA.
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| Watching the game in disbelief |
A case recently published by the Supreme Court of Austria (Oberster Gerichtshof) relates to whether an Austrian pub that showed German Bundesliga matches to its patrons via a TV signal broadcast from a foreign country "with commentary in Arabic and with the logo of the foreign broadcaster being visible" should have sought a license from the rights holder.
If this story sound familiar to Kat readers, it is because similar facts were featured in a landmark CJEU decision of 2011, C-429/08 "Premier League v. Murphy" (see the relevant Katpost here) There, a UK bartender (Ms. Murphy), used decoding equipment purchased in Greece to screen UK Premier League matches to her patrons, saving several hundred pounds per month (compared with purchasing the same subscription in the UK).
In Murphy, the CJEU mostly sided with the bartender, (i) criticizing the Premier League's licensing model as anticompetitive, (ii) rebuking national legislation prohibiting the import or use of foreign decoder cards as contrary to the freedom to provide services, and (iii) declaring that sporting events do not qualify as "works" for the purposes of copyright in the European Union.
Nonetheless, the CJEU qualified the opening sequence, the graphics and pre-recorded highlight films shown in the broadcast as copyrightable subject matter, and the screening of transmissions to pub patrons as a "communication to the public" within the meaning of the Infosoc Directive. Subsequently, the Court of Appeal of England and Wales dismissed the case against Ms. Murphy entirely (a Katpost with the full reasoning is available here).
The Austrian case summarized below differs only in a number of details from Murphy (see below), yet it reached a different outcome. The Austrian bartender was permanently enjoined from featuring Bundesliga games in the pub and ordered to pay damages and to arrange for publication of the decision in an Austrian daily newspaper. How did the Austrian court reach the opposite result?
Part of the answer is that broadcast licensing has evolved in the wake of Murphy and, as a result, the Austrian court did not have to opine on the same issues as the CJEU nine years earlier. Murphy was a case about competition law and free movement of goods as well as about copyright. The Austrian Supreme Court only needed to deal with the latter issue.
Pre-Murphy, broadcast license agreements used to include strict contractual prohibitions for offering services to customers outside of the licensed territory. The CJEU took issue with these provisions as contrary to EU competition law. To address the concerns of the CJEU, most right holders removed such clauses.
As a result, thanks to the change in licensing practices, no arguments related to competition law or free movement of services were on the table, the Austrian court only needed to deal with the copyright issue.
The Austrian Supreme Court considered that the recording of a football match constitutes copyrighted subject matter. Contrary to the CJEU, which focused on the fact that the match does not meet the definition of a copyrighted work, the Austrian court indicated that the recording of the match certainly does:
the director selects the best sequences from the recordings in his or her own creative decision and decides on the use of slow motion and repetition. In addition, the commentary can also separately constitute a protected work. The plaintiff has been granted the exclusive right to use this work by the creator of the audiovisual work.
It is undisputed that the footage screened by the Austrian pub had been licensed to the claimant, i.e. the defendant was not showing footage of the same match prepared by a third party. As such, the footage constitutes a work under copyright and its screening a communication to the public, whether or not it is combined with the original comments. The defendant does not hold a license from the rights owner or its licensee, which is why the Court confirmed the finding of copyright infringement.
Comment
First, it is a welcome development that the Austrian court acknowledged that the footage of a sports event constitutes a protected work under copyright law based not on whether the players themselves were performing a copyrighted work, but on the filming choices made by the film director.
Second, this case illustrates the importance of national law in copyright cases in Europe. Let's remember that the CJEU did not exonerate Ms. Murphy from copyright infringement. It was the Court of Appeal of England and Wales that did so in a subsequent ruling based on Section 72(1) of the UK Copyright Designs and Patents Act (CDPA), which explicitly allows the "showing or playing in public of a broadcast to an audience who have not paid for admission" (see also here). The Austrian pub's fate was sealed not by Murphy, but by the absence in the Austrian Copyright Act of a provision similar to Section 72(1) CDPA.
Nine years after Premier League v. Murphy, Austrian Supreme Court revisits football screening in pubs
Reviewed by Peter Ling
on
Monday, September 14, 2020
Rating:
Reviewed by Peter Ling
on
Monday, September 14, 2020
Rating:
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I am afraid that this post includes some material inaccuracies. There were two separate referrals from the English Courts which were dealt with in the CJEU ruling. One was the referral from the Divisional Court which was dealing with effectively Mrs Murphy's appeal against a criminal conviction. The other was from Kitchin J. (as he then was) in the civil proceedings between FAPL and QC Leisure and certain publicans. It is certainly true that Mrs Murphy's conviction was overturned as a result of the CJEU ruling. However, another result of the CJEU ruling was the finding that publicans using personal decoder cards (i.e. those without a commercial subscription) infringed copyright by communicating various copyright works included in the FAPL broadcasts to the public. The copyright works in question included but were not limited to films. So the fact that the CA dismissed FAPL's appeal regarding s.72 did not exonerate any publican from infringement of copyright in the other works included in the broadcasts. Moreover, that appeal had nothing to do with Mrs Murphy's case.
ReplyDeleteThe CA found that the film exception in s.72 was incompatible with the InfoSoc Directive, which led eventually to the repeal of that part of s.72.
The end result of the FAPL litigation was that any publican using a personal decoder card to show FAPL matches in a pub committed and commits infringement of copyright.
Furthermore, the Austrian Court did not reach 'the opposite result'. Although the short summary of the Austrian judgment does not give much detail, it appears to be the case that it was the inclusion of action replay films in the live broadcast which were the works protected by copyright - just as in the FAPL case, and with the repeal of the film exception in s.72, exactly the same result would happen in the UK. It is not at all clear that the Austrian Court acknowledged that the live footage of a football match attracts copyright protection
Many thanks for your detailed comment and insight. You are absolutely right to mention that the CJEU case was the result of two different referrals, only one of which related to Ms. Murphy. And thanks for pointing out that I may have misunderstood the scope of the Court of Appeal decision or its relation to CJEU Murphy, I will have another look at that.
ReplyDeleteOn the interpretation of what counts as communication to the public, the Austrian court indeed concurred with the CJEU (without quoting it once by the way). Nonetheless, unless your reading of the grounds of the Austrian decision is different from mine, the Austrian court indeed seems to have considered that the footage of the match itself is a protected work under copyright law (and not merely the action replay films). The CJEU at the time focused on the (more controversial) issue of whether the match itself is a protected work and needed to (artificially?) identify some protected works in the footage in order to have a copyright case in the first place (opening sequence, graphics and pre-recorded highlight films). I understand the Austrian Supreme Court's grounds to the effect that what happens behind the camera (such as choices of angle, framing, light, edits, inserting slow motion repetitions, etc.) is more relevant to the qualification of a copyrighted work than what happens in front of it. If my reading is correct, I would not disagree - although I must disclose that I may be overly influenced by my own (non-EU) national copyright law.