And it's all thanks to a combination of football (the real kind), pubs, and Rupert Murdoch's greed. Schade.
Today's ruling in Football Association Premier League Ltd., et al., v. QC Leisure, et al., No. C–403/08 (ECJ 04 Oct 2011) arose from a pub owner's disdain for the high license fees charged for satellite broadcasts of English football matches — and particularly of the enormous surcharges for pubs, well above the still-extortionate sums paid in private homes. In the UK, those sums are paid to Sky Sport (Sauron Murdoch, through intermediaries, owns a de facto controlling minority interest), above and beyond the TV license fee, because Sky Sport has negotiated an exclusive contract with the Premier League to distribute English-language broadcasts of Premier League matches in the UK. Publican Karen Murphy got a far-less-expensive decoder for Greek broadcasts and used it instead, apparently turning down the volume and playing a radio simulcast for her patrons. Naturally enough, the Premier League and Sky sued.
Those who have been following this blawg over the years will recall that I've claimed for quite some time (relatively recent example) that territorial rights to identical goods are dead in the EU, based on otherwise-unremarkable decisions concerning construction equipment and purported "exclusive territories" for distributors within the EU. If I was right, the ECJ would rule in favor of the publican in this case... while managing to throw some kind of a bone to the rightsholders, perhaps by distinguishing between personal rights and performance rights. In the end, that is exactly what the ECJ did.
So, then, what should authors, and composers, and artists, and other creators of copyrightable works take away from this?
- First, and most obvious, is that an identical work can essentially only be licensed once for redistribution of copies in the EU. That is, if one licenses the English-language rights to one's novel (or album) to a publisher in England, one cannot relicense those same English-language rights elsewhere in the EU; the English publisher inherently has the right to sell copies of the English-language work throughout the EU. Thus, no additional licensing in Ireland, or wherever else. This is obviously far more significant in some other languages (e.g., French and German) than English, but it's still significant.
- However, this has nothing whatsoever to do with public performance rights, which the ECJ explicitly carved out (see ¶¶ 195–207). Those have been preserved. In this particular case, that means that a private person, in the privacy of his/her own home, could properly obtain and use the Greek decoder with impunity. Ms Murphy, the publican, could not, because showing the matches for her patrons — if, that is, there was enough other copyrighted content — was a public performance, which is a different right that remains subject to territorial exclusivity.
- Perhaps most important in the long term, though, breaking the DRM in the privacy of one's own home is allowable in the EU. This is in direct contrast to the U.S., in particular the ill-considered and -drafted Chapter 12 of the Copyright Act (which makes breaking the DRM itself a copyright infringement).
- For the future, authors should not concern themselves with territorial limits within the EU for rights negotiations; instead, they should concern themselves only with the identical form (primarily language).
- For existing contracts that do make territorial rights exclusions for otherwise identical copyrightable materials within the EU, we're in for a good time. We, that is, being everybody who argues about it... especially lawyers. One thing that today's decision does not make clear enough is whether the packaging of a book or album/EP/CD is "enough" independent copyrighted material to enforce some kind of territoriality for otherwise-identical copies; that is, if slapping a different cover and blurbs would be enough to protect a Belgian French-language edition from a French import. I suspect that the answer is "no," but that's a case yet to be presented.
If, however, you're just a sport fan, the Grauniad offers several worthwhile commentaries on where this might be going. Until, that is, further media consolidation means that the media monsters can demand all-languages transfers...