Copyright protections prevent publicans using foreign decoders to show Premier League matches: Luxton case review

As is well known, the English Premier League (EPL) sells the live feed of Premier League football matches to licensed broadcasters around the world. In the UK, in February 2015 Sky and BT Sport paid a record £5.136 billion for live Premier League TV rights for three seasons from 2016-2017¹. Sky and BT Sport then charge the end consumer a monthly fee, which varies according to use in a domestic or commercial context. A significant part of the value attributable to these rights is the "territorial exclusivity" afforded by the EPL to its national broadcasters, which it then re-enforces by doing all it legitimately can contractually to discourage those licensed broadcasters from selling their services outside their allocated territory.

Football Association Premier League Ltd v. Luxton² (“Luxton”) is the latest case to pass through the courts where the EPL is at odds with publicans who, faced with the high cost of obtaining a subscription to Sky or BT Sport, seek alternative sources of supply outside the UK. In this latest leg of the fixture, the EPL came out on top. However, in previous meetings, such as in the case of Karen Murphy v. Media Protection Services,³ the result has been less clear cut.

This article briefly recaps the principles from the Karen Murphy case before reviewing the Luxton case. Whilst each of these cases concerns publicans who have accessed live Premier League football from non-UK providers located within the EU, this latest instalment dealt primarily with the distinction between domestic and commercial use of pay TV subscriptions.

The Karen Murphy Case: Territorial restrictions in the EU and Article 101

Article 101 of the Treaty on the Functioning of the European Union (Article 101) prohibits agreements that have as their object or effect the restriction of competition within the EU and which have an effect on trade between EU member states. Any agreement which seeks unlawfully to partition the EU single market is caught under Article 101.

In 2012, Ms Murphy won her court case against the Premier League over using a Greek TV decoder to show live football matches in her pub. Instead of using Sky, which costs £700 a month, she used a Greek TV station, Nova, which has the rights to screen Premier League games in Greece at a cost of £800 a year⁴.