Last Orders for Cut-price Foreign Football

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 UK, the rights are licensed to BSkyB. BSkyB has held these rights for over a decade and indeed many commentators attribute much of BSkyB’s success in the UK market to it having secured these rights. In Greece, the rights are licensed to NOVA.

 

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 UK. The pictures and ambient sound were also sent by the Premier League to NOVA. NOVA added its logo and Greek language commentary and re-broadcast the games via its satellite. Mrs Murphy subscribed to the NOVA broadcast and showed the games in her pub. Importantly, as we will see below, Mrs Murphy did this after another, unsuccessful, attempt by BSkyB to bring a private prosecution against her. 

 

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, Greece, satellite broadcasting leaves a wider ‘footprint’ and, therefore, Mrs Murphy was able to subscribe to and receive NOVA’s service in the UK. The NOVA service cost her less than half the price she would have had to pay for BSkyB’s service. BSkyB, concerned to protect the economic value of one of its most precious assets, the Premier League rights, was determined to stop her and to send a message to the market that subscribing to foreign broadcasts to obtain cheaper Premier League games (especially when shown for commercial purposes, such as in a pub) would not be tolerated.

 

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 United Kingdom’. Section 6(4) of the CDPA defines the place from which a broadcast is made as where ‘the programme carrying signals are introduced into an uninterrupted chain of communication including, in the case of  satellite transmission the chain leading to the satellite and down towards the earth’. Mrs Murphy argued that the broadcasting service she subscribed to was provided from Greece, not the UK as required to make out an offence under s 297.

 

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 UK broadcaster’s charge.’[2]

 

Secondly, he construed the phrase ‘programme included in a broadcasting service provided from a place in the United Kingdom’ differently from both the prosecution and Mrs Murphy. He held that the first step in every case should be to identify the ‘programme’. In the present case, the programme was the pictures and ambient sound taken from the football stadium where the matches were filmed. This programme was then broadcast by both BSkyB and NOVA.

 

‘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 United Kingdom’.[5] Here, the signals received by Mrs Murphy from NOVA were uplinked from Greece. The signals broadcast by BSkyB were actually part of a separate uplink to a separate satellite. More recently, the Minister for Culture, Media and Sport, James Purnell MP, replied to a question in the Commons by stating ‘It is not illegal for a pub/publican to subscribe to a foreign satellite channel as opposed to BSkyB and, as the DTI have stated, nor is it illegal to import decoder cards from the European Union.’[6] This begs the question – isn’t that precisely what Mrs Murphy was just convicted of?

 

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 United Kingdom’ and that ‘programme’ is then included in a ‘broadcasting service’ then it satisfies the requirements of the offence. Its re-broadcasting by a foreign broadcaster, even if altered by that broadcaster, does not change its original characterisation and therefore protection under s 297. In effect, the right being protected by s 297 is not the copyright in the broadcast, which is what one might have reasonably thought prior to the Murphy decision, but rather it is the economic value in the programme itself; value created by excusive, territorial licensing.

 

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 UK and a number of publicans. The cases were joined as The Football Association Premier League Ltd v QC Lesiure and others [2008] EWHC 44 (Ch). These actions were brought under ss 298 and 299 rather than s 297. The significance of the case for present purposes lies in the fact that the defendants are challenging the very broadcasting distribution agreements which carve up receiving markets and created the exclusivity that BSkyB used to successfully prosecute Mrs Murphy. The defendants are arguing that these are a restriction of competition and in breach of Article 81 EC. The Premier League applied for summary judgment on the basis that there was clear precedent in the Coditel case that exclusive territorial licences of copyright in broadcasts did not offend Art 81.[8] However, the High Court dismissed the application for summary judgment. Barling J distinguished the two cases on the basis that the scope of the Coditel judgment was narrow, authorising simply the legality of such agreements. However, the standard Premier League licensing agreements imposed an obligation on broadcasters to procure that decoders and viewing cards were only sold in their territory (ie so the likes of Mrs Murphy could not get them). This is a ban on passive selling as well as active selling, and is therefore a ‘hard-core’ restriction on competition. As such, Barling J held that the case should go to trial. Mrs Murphy might have had more luck if she had tried running this defence, but what is clear is that the final whistle hasn’t blown on this debate yet.

 

 

 

Ben Allgrove is a Senior Associate and Alastair Cox a trainee in the IT/Com department of Baker & McKenzie LLP’s London office.