Thursday, September 28, 2023
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No Windfall for Sky in Sharing Soccer Clips

(CN) - Broadcasters must provide rival companies free access to footage of "high interest" events, such as soccer matches, if there is no associated cost, Europe's highest court ruled Tuesday.

Under EU law, a broadcaster with exclusive rights must provide footage of "high interest" events to its competitors, and those non-rights entities must pay only to cover any additional costs that the rights holder incurs.

The Luxembourg-based Court of Justice found Tuesday that the Audiovisual Media Services Directive does not unfairly impinge on the fundamental freedom of rights holders to conduct business or their fundamental property rights.

An Austrian division of Sky Broadcasting challenged the law in 2009 after it paid millions to acquire exclusive broadcast rights for Europa League soccer matches.

Sky, a subscriber-only provider, wanted to charge 700 euros for every minute of its content desired by Austria's national public broadcaster Osterreichischer Rundfunk (ORF).

KommAustria, Austria's media regulator, ruled that Sky could charge only for the costs associated with letting ORF play short clips of games involving Austrian teams. Since accessing the satellite signal is free, Sky would not get paid.

Sky Osterreich immediately appealed that decision, but an adviser to the Court of Justice sided with Austria in June 2012.

The high court adopted that recommendation Tuesday. It focused on how the Audiovisual Media Services Directive aligns with the right of companies to conduct business and of their property rights under the EU's Charter of Fundamental Rights.

Sky's exclusive broadcasting rights have asset value and do not constitute mere commercial interests or opportunities, the court found.

It added that EU law provides for the right to make short news reports, sets a limit on compensation, and describes the circumstances by which a rights holder can charge for the signal access.

All this means that Sky cannot exercise its exclusive broadcast rights autonomously.

"In the light, first, of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, of the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the European Union legislature was entitled to adopt rules such as those laid down in [the directive], which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom," the ruling states.

"In those circumstances, the European Union legislature was lawfully entitled to impose the limitations on the freedom to conduct a business contained in [the directive] in relation to holders of exclusive broadcasting rights and to consider that the disadvantages resulting from that provision are not disproportionate in the light of the aims which it pursues and are such as to ensure a fair balance between the various rights and fundamental freedoms at issue in the case."

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