In December last year, the High Court gave BSkyB a welcome Christmas present: holding that it is an offence for publicans to subscribe to foreign satellite broadcasts to obtain access to FA Premier League games to show in their pubs. Publicans may be tempted to do this because the subscription fees charged by BSkyB, the broadcaster of Premier League games in the UK, tend to be higher than those of foreign broadcasters, in this case the Greek broadcaster NOVA. In Murphy v Media Protection Services [2007] EWHC 3091 (Admin), the rights enforcement arm of BSkyB, Media Protection Services, successfully brought (and were upheld on appeal) a private prosecution against Mrs Murphy under s 297 of the Copyright, Designs and Patents Act 1988. Section 297 provides:
‘A person who dishonestly receives a programme included in a broadcasting . . . service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence…’
Pumfrey LJ, in one of his last judgments, held that Ms Murphy had done just that when she subscribed to Greek broadcaster NOVA’s satellite service and used it to show Premier League games in her pub in Hampshire.
Warm-up
The FA’s Premier League is the most watched football league in the world. The rights to broadcast Premier League games are granted through a series of exclusive, territorially-restricted licences to broadcasters. In the
Each Premier League game is filmed on site (by BSkyB) and a feed is sent to both BSkyB and the Premier League. BSkyB’s feed is then uplinked to its satellites for reception by UK-based subscribers, while the Premier League’s feed is sent to overseas satellite provider licensees, like NOVA. At issue in the Murphy case were two games, one on 19 August 2006 (Bolton Wanderers v Tottenham Hotspur) and the other on 25 September 2006 (Portsmouth v Bolton Wanderers). These two games were broadcast by BSkyB to its subscribers in the
Technologically speaking, both NOVA’s and BSkyB’s services function the same way. Subscribers must have a decoder and a viewing card, which work together to decode an encrypted satellite signal. Although NOVA targeted its broadcast of the games at its respective licensed territory,
From Kick-off to Full Time
The case at first instance was heard in the Portsmouth Magistrates’ Court. Mrs Murphy was there convicted of an offence under s 297. She appealed to the High Court. One of the crucial aspects of this case is that Mrs Murphy had been unsuccessfully charged with the same offence a year earlier. She won on that occasion because BSkyB could not establish the requisite dishonesty to make out the charge.[1] On this occasion, though, the lack of dishonesty defence was not available to Mrs Murphy because the previous unsuccessful prosecution had put her on notice of BSkyB’s rights and the existence of the s 297 prohibition. Mrs Murphy, therefore, based her appeal on two main grounds.
· She did not have an ‘intent to avoid any charge’. She argued that she did not want to avoid ‘any’ charge; she simply chose to pay the lower charge being asked by NOVA in a competitive market. This begged the question whether the words ‘any charge’ in s 297 require a defendant to have the intent to avoid ‘all charges’ or simply to avoid ‘any particular, legitimate charge’.
· She had not received a ‘programme included in a broadcasting service provided from a place in the
Pumfrey LJ rejected both arguments and upheld Mrs Murphy’s conviction.
First, he said it was sufficient to make out a charge under s 297:
‘… if it is shown that the Defendant knows that the broadcaster has the exclusive right in this country and makes a charge for reception of its broadcasts, and he or she makes arrangements to receive its broadcasts without paying that charge. The fact that a charge is paid to a broadcaster who the Defendant knows does not have the right to broadcast in this country is not inconsistent with an intent to avoid the
Secondly, he construed the phrase ‘programme included in a broadcasting service provided from a place in the
‘The question is to be answered by identifying what is said to be the “programme included in a broadcasting service”, then determining where that broadcasting service is provided from. Employing the definitions of s 6 CDPA, a “programme” is “any item included in a broadcast”, itself defined as “an electronic transmission of visual images, sounds or other information”. We do not consider that for this purpose a “broadcasting service” is anything more than a succession of such transmissions. In every case, however, it must be determined whether the broadcast, and so the programme, is capable of being lawfully received by members of the public. In the present case, there is no doubt that the core of the transmissions received by Ms Murphy, the visual images and the ambient sound of the matches themselves, was transmitted for simultaneous reception by members of the public and was capable of being lawfully received by them from BSkyB.’[3]
Pumfrey LJ argued that the programme’s identity was the same, despite the addition of Greek commentary and a logo by NOVA; it is one programme, included in two different broadcasts. The consequence of this interpretation is that, if right, the s 297 offence does not require an individual to receive a programme from a UK broadcasting service; it is sufficient that s/he receives a programme from anywhere in the world, but one which a UK broadcasting service also airs.
Analysis
Recital 13 of the Conditional Access Directive[4] provides:
‘. . . It seems necessary to ensure that Member States provide appropriate legal protection against the placing on the market, for direct or indirect financial gain, of an illicit device which enables or facilitates without authority the circumvention of any technological measures designed to protect the remuneration of a legally provided service.’
This reflects the core of the rationale for the s 297 offence. Landlords prosecuted by BSkyB in recent years for similar offences have generally relied upon a lack of dishonesty in defence. Second time round, Mrs Murphy could not. She had to look a bit harder at the wording of s 297 itself. The interpretation of s 297 settled upon by Pumfrey LJ has significantly increased its scope from what it seems Parliament intended. Section 297A was introduced into the CDPA in 1990. During the Commons discussion at the time Mr Coombs MP noted that the ‘provisions apply only to signals uplinked from the
The confusion arises because s 297 was designed to counteract illegal hacking of satellite broadcasts using alternative or ‘chipped’ decoders. In other words, it was intended to stop the likes of Mrs Murphy attempting to get access to BSkyB’s broadcast without paying. However, BSkyB have now successfully used it to combat a different phenomenon – cross-border competition from other broadcasters.[7] They have done this by persuading the High Court that s 297 defines ‘broadcasting service’ by reference to the ‘programme’ in question. If the ‘programme’ was ‘provided from a place in the
Also worthy of note is what the Court concluded about the definition of ‘broadcasting service’ in s 297. Section 299(5) refers you back to Part I of the CDPA for the meaning of ‘programme’, ‘broadcasting’ and related expressions in s 297. Section 6 (in Part I of the CDPA) defines ‘broadcast’. Importantly, s 6(5A) provides that, for the purposes of Part I, where a broadcast is received and re-transmitted (what NOVA does, though they also modify the programme by adding commentary and logos), this constitutes a separate act of broadcasting and the creation of a new ‘broadcast’ for the purposes of copyright. The effect of the decision in Murphy is that the s 6(5A) qualification or clarification on the definition of ‘broadcast’ does not apply when that word is interpreted in the context of s 297. While this seems correct on a strict construction of s 6(5A), it does just highlight the fact that the protection for ‘broadcasts’ in copyright is narrower than the protection for the subscription business models attached to ‘programmes included in broadcasting services’ under s 297.
Extra Time?
In a separate case mirroring the facts of Murphy, the Premier League prosecuted both the importers of the foreign satellite decoders into the
Ben Allgrove is a Senior Associate and Alastair Cox a trainee in the IT/Com department of Baker & McKenzie LLP’s
[1] Inability to prove dishonesty was also the reason that the prosecution failed in Gannon v F.A.C.T. (March 2006,
[2] Murphy at [42].
[3] Murphy at [36].
[4] Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998.
[5] Hansard, 25 October 1990.
[6] Hansard, 31 January 2006.
[7] Note that the question of whether NOVA was in breach of its licence terms from the Premier League for allowing a UK consumer to have a decoder for its Greek broadcast was not considered in Murphy, but this would have been the subject of a civil claim, rather than a criminal one.
[8] Coditel SA, Compagnie Generale pour la Diffusion de la Television v Cine-Vog Films SA: 262/81 [1982] ECR 3381