In the case of Karen Murphy v Media Protection Services Limited  EWHC 3091 (Admin), the English High Court upheld the finding of the Portsmouth Crown Court that the Appellant had committed an offence under Section 297(1) of the Copyright Designs and Patents Act 1988 (CDPA).
The Football Association Premier League (Premier League) owns the intellectual property in the broadcast of live Premier League football matches. BSkyB is its exclusive licensee in the UK and Ireland. BSkyB provides a subscription service where, in lieu of a monthly charge, customers are allowed to receive football broadcasts through the use of a decoding card.
As a result of BSkyB’s subscription cost, the Appellant, who is the licensee of a pub, bought a satellite dish, a decoder box and a Nova viewing card (from the Greek broadcaster, Nova), in order to screen live Premier League football matches originating from the Nova satellite.
This case was part of a series of multiple prosecutions undertaken across the United Kingdom by the Respondent, an agent of the Premier League, to prevent the illegal broadcasting of matches during the UEFA-stipulated “closed period”. Such broadcasts had become widespread due to subscriptions to foreign satellite channels through third party suppliers in the United Kingdom.
The Crown Court held that the Appellant had dishonestly received 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. She was convicted under Section 297(1) of the CDPA.
The Court directed the following questions for the opinion of the High Court:
- Whether, for the purposes of Section 297(1) CDPA, the broadcasting service or broadcaster in question had to be based in the UK?
- Whether the Premier League or BSkyB were broadcasters; or were providing a broadcasting service within the meaning of Section 297(1) and Section 6 CDPA?
- Whether the live feed of sounds and pictures provided to Nova was a broadcast, or a programme included in a broadcasting service, within the meaning of the CDPA?
- If the answer to the previous question was in the affirmative, the Court queried whether the signal from BskyB's cameras to the Premier League and from the Premier League to Nova and from Nova to the Appellant formed part of a continuous chain of communication?
- Did the requisite intent to avoid any charge applicable to the reception of the programme within Section 297(1) of CDPA apply to circumstances where the Appellant had paid a charge to the Greek broadcaster, but had not paid a subscription fee to BSkyB who was the domestic broadcaster?
One of the main contentions by the Appellant was that there was no offence under Section 297(1) of the CDPA because, for the purposes of this section, the place at which the broadcast was made was (pursuant to Section 6(4) of the CDPA) the place at which the programme-carrying signals were introduced into an uninterrupted chain of communication. In Nova’s case, that place was its premises in Greece and, accordingly, the transmissions received by the Appellant had not been made from a place in the United Kingdom.
Handing down his decision, Lord Justice Pumfrey gave his opinion in relation to the questions as following:
- This first question was ambiguous. The preliminary step in every case is to identify the programme included in the broadcasting service and then determine the first point of origin of the broadcasting service. The service originated from the point at which the initial transmission of the programme for ultimate reception by the public took place. In this case, the matches were initially filmed in the UK and then broadcasted. The addition of a Greek commentary and logo did not change the identity of the programme as received by the Appellant. Thus, the broadcasting service originated in the United Kingdom.
- The High Court affirmed that both the Premier League and BSkyB were broadcasters as they had the editorial responsibility for the composition of schedules of the programme transmissions.
- The live feed of sounds and pictures provided to Nova were a succession of electronic transmissions of visual images, sounds or other information and thus were covered by Section 297(1).
- This question was irrelevant as the definition of “broadcast” under Section 6 remained unaffected by the manner of transmission between its origin and the public, as long as the identity of the programme was not affected.
- The requisite intent to avoid a charge would be satisfied if, in spite of the knowledge that the broadcaster had an exclusive right to broadcast programmes in the UK in lieu of a subscription fee, the Appellant was in receipt of the broadcast without the payment of the accompanying charge. In this case, it was proved that the Appellant knew: that BSkyB had such an exclusive broadcasting right within the United Kingdom; that the broadcaster charged a subscription fee for its service; and that Nova’s right was limited to Greece. Regardless of this knowledge, she chose to receive the broadcasts without paying the requisite charge. Also, the Appellant’s choosing not to appeal against the finding of dishonesty implied that she intended to avoid a payment lawfully due to BSkyB.
Accordingly, the offence under Section 297(1) was confirmed. The case did not address any competition law aspects.
This case is significant as, even though it relates to matches played in the UEFA-stipulated “closed period”, the generic principles formulated may apply to all live satellite broadcasts of Premier League matches.
However, the Court did not clarify the position regarding the legitimacy of foreign satellite systems in the United Kingdom. In other words, it did not clarify whether or not the activities of the suppliers who provide decoders to pubs in United Kingdom are legal. In broader terms, how can a rights holder protect its exclusive interest if the supplier’s conduct in the United Kingdom is deemed to be legal? This is a question which is yet to be tested, but which is of the utmost importance because a ruling in favour of the pubs would hamper BSkyB’s exclusive rights to broadcast live matches exclusively in the United Kingdom as alternative subscriptions could be purchased from external sources. Lastly, as a comment on the Respondent’s strategy of prosecuting the end user rather than the suppliers of the decoders and cards, it could be argued that Media Protection Services needs to consider this approach carefully. Its present policy attempts only to contain the situation rather than attack its root cause. By going after the pubs rather than the UK suppliers, the technology remains available. Such a strategy will further the damaged relationship between the end user and broadcaster, hampering the broadcaster’s market.