Reacting to the judgment in Karen Murphy

To sum up, the use of legislation to enforce the prohibition on using foreign decoding devices shaped by the contracts in place could not be justified in the light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums. It went too far. The same conclusion was reached in connection with the application of competition law to the contracts. Objectives permissible in principle were pursued by means that were unduly restrictive—a common theme in EU internal market law. The judgment stands for a strong protection of the internal market’s long-standing mistrust of absolute territorial protection.[1] [2] [3] [4]

The ruling in Karen Murphy left open what—albeit certainly reduced—level of protection could be maintained.^4 In line with the pattern seen thematically throughout this book, the intervention of EU law directed what may not be done. It is left to the private parties involved—rights holders and purchasing broadcasters— to decide what shall be done. But clearly the effect of EU law is to channel the available options. The Premier League’s autonomy is conditional on compliance with EU law.

The ruling avoids any empirical inquiry into the likely consequences of loosening the FAPL’s relatively secure grip on the cross-border trade in decoders.The obvious fear is that the Premier League might simply respond by refusing to supply Greek and other low-price markets at all, which would do little for either market integration or consumer choice. Absolute territorial protection is anathema to EU law: intolerance to it places an outer limit on the autonomy of the seller of rights and the commercial reward available under licensing backed up by intellectual property. Whether that implacable distrust of absolute territorial protection is a coherent and consistently expressed thematic norm in EU law or an expression of militant refusal to permit commercial reality to disturb the fetish for marketmaking whatever the practical consequences—or both—is a tension that permeates all of EU internal market law, and has long done so.166 Karen Murphy is a clear example of the orthodoxy that internal market law is not applied with detailed concern for empirical inquiry.

  • [1] See eg E Szyszczak, ‘Karen Murphy: Decoding Licences and Territorial Exclusivity’ (2012) 3Journal of European Competition Law and Practice 169; S De Vries, ‘Sport, TV and IP rights: PremierLeague and Karen Murphy’ (2013) 50 CML Rev 591; K Pijetlovic and K Nyman-Metcalf, ‘Liberalisingthe Service Market for Satellite Transmission’ (2013) 13 Intl Sports LJ 82.
  • [2] On the options, see D Doukas, ‘The Sky Is Not the (Only) Limit—Sports Broadcasting withoutFrontiers and the Court of Justice: Comment on Murphy (2012) 37 EL Rev 605, especially 621—25; A Kaburakis, J Lindholm, and R Rodenberg, ‘British Pubs, Decoder Cards, and the Future ofIntellectual Property Licensing after Murphy (2011—12) 18 Col J Eur L 307, especially 319—22. Seealso T Margoni, ‘The Protection of Sports Events in the EU: Property, Intellectual Property, UnfairCompetition and Special Forms of Protection’ (2016) 47 International Review of Intellectual Propertyand Competition Law 386.
  • [3] Kokott AG does not ignore this, but has little to say: see Karen Murphy (n 125) paras 201—202,Opinion of Kokott AG.
  • [4] eg a critical account of the story of Johnny Walker Whisky (Distillers Co Ltd [1978] OJ L50/16)is a staple of successive editions of V Korah, An Introductory Guide to EC Competition Law and Practice(9th edn, Hart 2007) ch 8.6.1.
 
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