## Facts

- The Football Association Premier League (FAPL) licensed live match broadcasts on a country-by-country basis, typically granting a single broadcaster exclusive rights per territory.
- Licence agreements required broadcasters to prevent use of decoding devices outside the licensed territory, supporting territorial exclusivity and price differences between Member States.
- Premier League broadcasts were encrypted and accessible only by subscription using decoder cards issued by broadcasters.
- UK pubs obtained and used foreign satellite decoder cards (notably Greek subscriptions) that were cheaper than UK commercial packages, enabling reception of live Premier League broadcasts.
- FAPL and related entities sued suppliers of foreign decoder cards and pub operators in England, relying in part on UK legislation implementing the Conditional Access Directive to characterize the cards as unlawful “illicit devices.”
- In a related prosecution, pub manager Karen Murphy used a foreign decoder card registered in her name to show matches in her pub; she was convicted under UK law and appealed.
- UK courts referred questions to the Court of Justice of the European Union (CJEU) on free movement of services, competition, conditional access rules, and copyright.

## Issues

1. Whether national rules prohibiting importation, sale, or use of foreign decoder cards lawfully issued in another Member State restrict the freedom to provide services under Article 56 TFEU and, if so, whether such restrictions are justified.
2. Whether legitimately issued foreign decoder cards used contrary to territorial contractual limits qualify as “illicit devices” under the Conditional Access Directive 98/84/EC.
3. Whether contractual clauses granting absolute territorial exclusivity and requiring prevention of cross-border reception restrict competition by object under Article 101(1) TFEU.
4. Whether football matches are protected “works” under EU copyright law and which broadcast elements, if any, qualify for copyright protection.
5. Whether reception and display of broadcasts create “reproductions,” whether temporary technological copies are exempt, and whether showing broadcasts in pubs is a “communication to the public” requiring authorization.

## Decision

- The CJEU held that national measures banning the importation, sale, or use of foreign decoder cards lawfully issued in another Member State restricted Article 56 TFEU and were unjustified in the form at issue.
- The CJEU ruled that foreign decoder cards issued by the service provider for payment were not “illicit devices” under Directive 98/84/EC merely because they were used in breach of contractual territorial limits.
- The CJEU concluded that clauses requiring absolute territorial exclusivity and prohibiting provision of decoding devices outside the licensed territory restricted competition by object under Article 101(1) TFEU.
- The CJEU held that football matches themselves are not copyright-protected “works,” but certain broadcast components (e.g., opening sequences, music/anthem, recorded clips, on-screen graphics) can be protected works.
- The CJEU held that pub showings of the protected elements of the broadcast constitute a “communication to the public” under Article 3(1) of the InfoSoc Directive and require rightholder authorization.
- The CJEU indicated that temporary copies created in decoder memory and on screens can be “reproductions,” but may fall within the transient-copy exception if all statutory conditions are met, subject to national-court verification.

## Legal Principles

- Article 56 TFEU protects both cross-border provision and reception of services; national rules that bar use of lawful foreign decoding devices can unlawfully restrict that freedom when they enforce market partitioning through territorial exclusivity.
- Directive 98/84/EC targets pirate or unauthorized devices; a genuine decoder card issued and marketed with the broadcaster’s authorization is not an “illicit device” solely due to contractual misuse.
- Contract terms that impose absolute territorial protection and prevent cross-border access to broadcasting services may restrict competition by object under Article 101(1) TFEU when they partition markets along national borders.
- Sports events such as football matches are not copyright “works” absent creative freedom; separately created audiovisual content (graphics, sequences, music, clips) may be protected works.
- Showing protected broadcast content in a commercial establishment to customers is a “communication to the public” requiring authorization, particularly where it targets an audience beyond that contemplated for the initial broadcast and is profit-linked.
- Technological copies made during reception and display can be reproductions, but may be exempt as transient or incidental copies if they are temporary, integral to a technological process, and lack independent economic significance.

## Conclusion

The CJEU rejected national and contractual mechanisms that used territorial exclusivity to block lawful foreign decoder cards and partition the internal market, while simultaneously confirming that pubs publicly showing protected broadcast elements without permission infringe copyright through unauthorized communication to the public.


Football Ass’n Premier League Ltd. v. QC Leisure, Joined Cases C-403/08 & C-429/08 (C.J.E.U. 2011)