¹ Case C-429/08, Karen Murphy v. Media Protection Services Ltd., Judgment of 4 October 2011, not yet reported [hereinafter “Karen Murphy”].Google Scholar

² A similar reference was made in the case C-403/08, FA Premier League v. QC Leisure, Judgment of 4 October 2011, not yet reported, which was initiated by FAPL, along with Nova, and concerned three actions directed against the British parallel traders in satellite decoder cards and against the pub owners. Case C-429/08 and C-403/08 have been joined for the purposes of the written proceedings, oral proceedings and the judgment because they have the same subject matter.Google Scholar

³ Case C-62/79, Coditel SA v. Cine Vog Films, 1980 E.C.R. I-881 [hereinafter “Coditel I”].Google Scholar

⁴ The Greek decoder cards are available in the UK through sales points. It seems that once acquired, these cards are activated through a system whereby the purchasers of the cards are identified as being resident in Greece. A subscription account in Greece is needed for the activation of the cards.Google Scholar

⁵ Second Report from the Commission on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, 30 September 2011, COM (2008) 593 final, 4–9. The Commission explicitly mentions that sanctions used in order to combat this “grey market” are unlawful, since the sanctions established under the Directive can only concern actions related to the use of illicit devices. They cannot therefore, apply to other actions, such as the use of lawful devices without respect for territorial restrictions.Google Scholar

⁶ Opinion of Advocate General Kokott in joined cases C-403/08 and C-429/08, FA Premier League v. QC leisure, Opinion of 3 February 2011, not yet reported, at para. 192.Google Scholar

⁷ In Coditel I the ECJ held that the doctrine of exhaustion does not apply to the right to perform or show a copyright work in public where the specific subject matter of the right allows the owner to control each and every use, since it is through charging for each use that the essential function of the right is achieved (see Coditel I, paras. 12–13).Google Scholar

⁸ Opinion of Advocate General Kokott in joined cases C-403/08 and C-429/08, FA Premier League v. QC leisure, at paras. 144–147.Google Scholar

⁹ Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonization of certain aspects of copyright and related rights in the information society, 2001 O.J. (L 167) 10.Google Scholar

¹⁰ Some countries do recognize a recorded sports event as a work under national copyright law.Google Scholar

¹¹ See Murphy, Karen, supra note 1, at paras. 85–105.Google Scholar

¹² Id. at paras. 106–113.Google Scholar

¹³ Id. at paras. 114–116.Google Scholar

¹⁴ Id. at paras. 119–120.Google Scholar

¹⁵ Id. at para. 117.Google Scholar

¹⁶ See also Case C-262/81, Coditel SA v. Cine Vog Films SA, 1982 E.C.R. I-3381, at para. 15.Google Scholar

¹⁷ See Murphy, Karen, supra note 1, at paras. 135–142.Google Scholar

¹⁸ Id. at paras. 143–146.Google Scholar

¹⁹ Id. at paras. 153–182.Google Scholar

²⁰ Id. at paras. 183–207.Google Scholar

²¹ See Directive 2001/29/EC art. 3–4, 2001 O.J. (L167) 10; WIPO Copyright Treaty art. 6–7, Dec. 20, 1996.Google Scholar

²² Rental and lending rights cannot be exhausted either. See Council Directive 92/100/ECC art. 1, Nov. 19, 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, 1992 O.J. (L346) 61; Case C-158/86, Warner Brothers v. Christiansen, 1988 E.C.R. I-2605; Case C-61/97, Egmont Film, 1998 E.C.R. I-5171; Case C-200/96, Metronome v. Music Point, 1998 E.C.R. I-1953.Google Scholar

²³ Case C-456/06, Peek & Cloppenburg KG v. Cassina SpA, 2008 E.C.R. I-02731, at para. 36.Google Scholar

²⁴ See Cases C-431/09 and C-432/09, Airfield NV v. Sabam, Judgment of 13 October 2011, not yet reported, at paras. 75–77.Google Scholar

²⁵ Case 87/70, Deutsche Grammaphon, 1971 E.C.R. I-487, at para. 6. See also Case C-51/75, EME Records, 1976 E.C.R. I-811, at para. 27; Case 258/78, Nungesser, 1982 E.C.R I-2015, at para. 28; Case 102/77, Hoffmann-la Roche, 1978 E.C.R. I-1139, at para. 6; Case 58/80, Dansk supermarket, 1981 E.C.R. I-181, at para. 11.Google Scholar

²⁶ See Coditel I, at para. 13.Google Scholar

²⁷ The exclusive right of cable retransmission has now been codified in Council Directive art. 8, 27 Sept. 1993, 93/83/EEC on the coordination of certain rules concerning copyright applicable to satellite broadcasting and cable retransmission 1993 O.J. (L248) 15.Google Scholar

²⁸ Opinion of Advocate General Kokott in joined cases C-403/08 and C-429/08, FA Premier League v. QC leisure, at para. 197.Google Scholar

²⁹ See the Communication from the Commission on the application of the general principles of free movement and goods and services, articles 28 and 49 EC, concerning the use of satellite dishes, COM (2001) 351 final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0351:FIN:EN:PDF (last accessed: 23 December 2011).Google Scholar

³⁰ See the Second Report from the Commission on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, COM (2008) 593 final, available at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2008&nu_doc=593 (last accessed: 23 December 2011).Google Scholar

³¹ In this context, the broadcaster BSkyB has decided not to join FAPL's action before the British courts, although it the main victim of the contested practice. Most likely, the losses caused by the defendants are incomparable to BSkyB's gains from the hundreds of thousands of “grey” individual subscriptions acquired throughout Europe.Google Scholar

³² The Commission had already admitted in its report on the implementation of the Cable and Satellite Directive that the application by Member States was not in line with the country-of-origin principle. Report from the European Commission on the application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, COM (2002) 430 final.Google Scholar

³³ In this context, Michel Barnier, EU commissioner for the internal market, has expressed that the judgment will not oblige right holders to grant single pan-EU licenses. Association of Commercial Television in Europe (ACT), “Creation, Consumers and Competitiveness” annual conference in Brussels, 9 November 2011.Google Scholar