Liberalising the service market for satellite transmission: interplay between intellectual property rights, specificity of sport and TFEU economic provisions in Murphy (joined cases C-403/08 and C-429/08)

Abstract

The article explores the relationship between specificities of broadcasting and sporting industries and protection of intellectual property rights (copyrights) on the one hand and the economic provisions in the Treaty on the Functioning of the European Union (TFEU) on the other. It is generally built around the Murphy case but the discussion provides a much broader perspective at the issues raised by the Court in that judgment. We start off by looking at the EU post-Lisbon competences in the areas of sport and intellectual property and acknowledging the interrelationship and delicate balance between these areas and the EU goals of economic integration. The facts of the case are set out and thereafter the analysis turns onto the meaning and significance of ‘illicit device’ under Conditional Access Directive; the notion of ‘abuse of rights’ under the EU law; breach of the EU rules on free movement of services (Article 56 TFEU); objective justifications relied on by the Premier League (protection of intellectual property of sporting events and encouraging the public to attend stadiums); the proportionality of the measures employed; ‘closed periods’; the role that Article 165(1) TFEU played in the conclusions of the Court of Justice in Murphy; competition law aspects and convergence with internal market objective justification framework; Audiovisual Media Services aspects; and protecting copyrights and associated works under the Copyright Directive.