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SPORT IP


According to the EPL, around 40 percent of this revenue was earned overseas, where English matches are broadcast in 211 countries; each licensee is required to adhere to the EPL’s copyright regulations.


“T e EPL sells its rights competitively in a closely regulated market, intended in part to encourage as many entrants as possible,” the organisation said in its answers to the IPO.


Under EPL rules, it licenses exclusive territorial rights to broadcast matches and appoints exclusively-licensed broadcasters in each jurisdiction. In exchange, the licensee agrees to prevent the public from receiving its broadcasts outside the territory for which it holds the licence.


However, as Körner concedes, this can in turn create


with the cost of hosting live content diff ering dramatically depending on the market.


It was this imbalance that led to one of the most high-profi le licensing disputes in recent times.


The Murphy case


In 2012, UK pub landlady Karen Murphy overturned a six-year-old conviction for copyright infringement


broadcast a Greek feed of live EPL matches.


In Greece, the cost of a television box providing access to the EPL’s live broadcasts is considerably lower than that of a subscription in the UK. By ordering the decoder, Murphy was able to bypass the £480 ($740) monthly fees for bar owners charged by BSkyB, the exclusive licensee of EPL rights in the UK at the time.


Murphy was fi ned £8,000 ($13,500), but took her case to the Court of Justice for the European Union (CJEU), which ruled partially in her favour aſt er admitting that exclusive licensing systems were “contrary to EU law” and that using the decoder amounted to a free fl ow of goods in the European community.


But the EPL also claimed a partial victory of its own, with the CJEU ruling that there were some sections of the broadcast, such as pre-match analysis, on-screen graphics and the offi cial anthem, for which it could claim copyright. Unlike the aforementioned sections, the live match was not deemed an intellectual creation and was therefore not protected.


Some commentators expected that the case (FAPL & Others v QC Leisure & Others; Karen Murphy v Media Protection Services Ltd) would set a precedent for a shiſt in the way football is licensed


38 for using a foreign decoder to


and would lead to a marked increase in fans circumventing individual licensing agreements.


“T is [the case] does have the potential to reduce the premium broadcasters will pay for exclusivity,” says Penny T ornton, senior associate at Hogan Lovells LLP in London.


“Ultimately, they face the risk that customers may be able to access the content more cheaply from another broadcaster,” T ornton says.


Körner explains that following the case,


there were concerns that only pan-European broadcasters would survive and they would pay “extortionate” bids to obtain an exclusive right.


He adds: “If you sell exclusive rights as a whole you don’t care what happens in the individual markets.”


Despite this, Thornton says, the recent auctions in the UK for EPL rights, which are worth £1.78 billion ($2.7 billion), and Champions League television rights, showed that the market was “still alive and kicking” in the wake of the ruling.


BSkyB paid £1.4 billion ($2.2 billion) for the rights to a majority of live EPL games while BT Sport, which paid for the remainder of the games in the UK, made a successful £900 million ($1.47 billion) bid for exclusive Champions League rights.


T ornton adds that although the Murphy case did not “fatally undermine” the ability of rights holders to grant exclusive broadcast licences, it did cast some doubt on the ability to “eff ectively enforce” exclusivity.


Trademarks Brands and the Internet Volume 2, Issue 4 discrepancies between jurisdictions,


“GIVEN


TECHNOLOGICAL ADVANCES AND EUROPE’S AIM TO CREATE A SINGLE MARKET FOR COPYRIGHT, IT IS LIKELY THAT MECHANISMS FOR PAN-EUROPEAN LICENCES WILL BE CONSIDERED AT SOME STAGE.”


UEFA and pan-European licences


T roughout Europe, the body tasked with overseeing the continent’s football associations is UEFA. T e Champions League, UEFA’s fl agship club tournament, is broadcast in 43 European countries, with


each nation’s


broadcasters


bidding separately for the rights to host matches, a similar system to the EPL’s.


But Körner says that due to price diff erences, the UEFA system reinforces the problems posed by the Murphy case, given that the same broadcast may cost one jurisdiction signifi cantly more than another, therefore potentially opening the door to infringements.


“T ere was a situation in Germany where the rights to the German Cup were not sold to smaller jurisdictions, as the Bundesliga (the German football league) was afraid of potential problems.


the


“T e value of the rights in smaller markets was commercially negligible and bypassed the legal risk of people circumventing their licences to get cheaper access, as we saw in the Murphy case,” Körner says.


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