Wider impact of Murphy case

By Peter Coulson

- Last updated on GMT

Related tags High court European union

Coulson: debate over legality rumbles on
Coulson: debate over legality rumbles on
Morning Advertiser legal editor Peter Coulson considers what the general advocate's opinion on foreign satellite systems means.

It is far too early to predict what the outcome will be in the long-running arguments about satellite football. Let us just say, in time-honoured fashion, that the goalposts are likely to be moved before the game is over.

The issue has, in fact, spilled out of the now-famous Portsmouth bar and into the complex world of European competition law. Really for the first time, the advocate-general has raised the issue of whether any form of territorial arrangements within the EU are in fact contrary to the Treaty, and this does not just mean the rights to screen football games but many other rights as well.

Logical extension

For example, harmonisation of duty on alcoholic drinks and taxes on gambling was an initial objective of the Common Market, but that has never come to pass and is unlikely to happen in the near future.

But it is a logical extension of the idea that there should be no barriers to trade within the EU and that everyone should be on a level playing field.

But there are still numerous examples of protected territorial rights throughout Europe, notably in trading arrangements whereby a distributor is given exclusive marketing and selling rights within a particular area.

Clearly, importation of non-duty paid goods to any trading area is frowned upon by the authorities, but there are wide differentials in price that still make the white-van trade lucrative on both booze and fags.

The sequence of events in the current case will be that the European Court of Justice (ECJ) will pronounce on the questions posed to them by the High Court — in other words, they will clarify what European law says on the subject in question, which may well run counter to what English law provides at the present time.

High Court

When the matter eventually returns to the High Court (where the cases still are, incidentally) the judges will take into account the answers that they have been given by the ECJ, and if they find a conflict they must disapply the relevant parts of the Copyright Designs and Patents Act under which the prosecutions are brought, to the extent that they are found to conflict with European law. It is then for the UK Government to look at the situation and, if necessary, amend UK law so that it complies with what the European Court has determined.

No end to debate

But this opinion will not end the overall debate about how intellectual property rights are operated within the European Union. A good example is the difference in music copyright fees throughout the EU. They are not harmonised, and in fact UK users pay a lower rate (to the Performing Right Society) than is charged elsewhere. Is this contrary to European Law?

As far as I am aware, no one has challenged this, but harmonisation would mean an increase in the rates licensees now pay, rather than a decrease.

One element of the advocate-general's opinion that has not been touched upon in the reports I have seen is the copyright holder's right to withdraw permission for broadcasting in pubs, but as this is, effectively, killing the goose that lays the golden egg — the pub market being extremely lucrative — I very much doubt this will be of much use in the long run.

Another interesting element in the opinion was the challenge to the effectiveness of the 'closed period' on Saturday afternoons, which Sky and every other UK broadcaster complies with. Opening up live Saturday matches — perfectly legal in Germany — could provide pubs with a short-term boost. But the long-term future for televised football is very hard to determine.

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