Advocate General Bot issued his opinion today in Sky Österreich v Österreichischer Rundfunk (ORF), a dispute between Sky, which owned the right to show certain Europa League matches in Austria, and ORF, Austria’s public broadcaster, which wanted to show clips of the games as part of its news programming.
In December 2010, the country’s communications watchdog, KommAustria, decided that Sky must allow ORF the right to transmit clips of games involving Austrian teams.
The Audiovisual Media Services Directive allows TV channels to acquire exclusive rights to broadcast events such as football matches, even if they are of great public interest. But it says that they must allow rivals to use short extracts for news purposes and provide them with access to the signal so that they can choose which extract they want to use.
Crucially, the directive says that the compensation linked to that use must not exceed the additional costs incurred in providing that access.
In this case, the additional costs were zero.
Sky complained to the Bundeskommunikationssenat (the Federal Communications Tribunal), arguing that the system is unfair. The Tribunal has asked the Court of Justice of the EU tp rule whether the part of the directive which deals with compensation constitutes a justified interference with the freedom to conduct a business and the right to property of holders of exclusive rights.
Today Bot advised the Court to rule that the directive does interfere with the fundamental rights broadcasters who enjoy exclusive rights of transmission because they can no longer freely decide the price they charge for access to short extracts of events.
But he said that such interference is justified because it is outweighed by the freedom to receive information and the need for media pluralism.
Bot’s conclusion does not give broadcasters a green light to transmit unlimited footage of events for which rivals own the exclusive broadcasting rights, however.
He said that the right only exists for events of high interest to the public; the clips are only to be used in news programmes; and they should not last longer than 90 seconds. Finally, the broadcaster must credit the owner of the rights, to ensure that they receive publicity. The opinion is not binding on the Court, which is expected to issue its ruling later this year.