QUESTIONS OF COPYRIGHT INFRINGEMENT IN CROSS BORDER BROADCASTING
Premier League football is big business and the recent overseas TV rights deal for a reported £600 million has established the English Premier League as the most popular in the world.
Whilst there are arguments as to whether this success has come at too high a price, as ticket prices continue to rise, one of the most contentious areas remains the use of foreign satellite channels to screen English Premier League games in English public houses (pubs) and clubs.
It is becoming increasingly common practice for various pubs and licensed premises to show these foreign channels and consequently there are a growing number of suppliers who actively canvass and market to these premises.
At the same time British Sky Broadcasting (“Sky”) and the FA Premier League have undertaken a campaign of prosecutions, through local magistrates courts, against owners of pubs (publicans) from using these systems for criminal copyright infringement.
The law in the area remains confused. Whilst on the one hand it is absolutely clear that Sky (and next year Sentana Sports as well) are at present the only rights holder able to broadcast Premier League football within the UK, it is not clear whether the pubs that they have sought to prosecute have committed a criminal act through infringing that copyright.
There is obviously a civil wrong for which Sky and the Premier League could seek redress in the Civil Courts. However, they have not chosen to do so and have adopted a far more heavy-handed approach of pursuing the matter as a criminal offence in the hope of dissuading licensees from purchasing football from foreign suppliers.
Matters are set to come to a head in the very near future when a publican based in Portsmouth, in the South of England, will have an appeal against an earlier conviction decided by the High Court.
The argument of those that wish to show foreign broadcasts of English football is quite simple. Section 297 of The Copyright, Designs and Patents Act 1988 (the “Act”) under which Sky is seeking to bring its prosecutions deems “broadcasting” an unlawful activity unless it is done with the permission of the copyright owner.
In addition the Act states that there must be a dishonest intent to infringe copyright. The argument of the Portsmouth publican and several like her, is that they are not acting dishonestly as they have obtained subscription cards and relevant equipment from broadcasters who are licensed to show Premier League, albeit via broadcasts not intended to be received in the UK.
The argument is that receipt of the broadcast is not the same as “broadcasting”. There is further confusion in that the foreign broadcast is technically a re-broadcast of a broadcast emanating from the UK.
Sky and the FA Premier League argued that the legislation is being used properly and that persons holding the foreign subscription know that the only legitimate supplier of Premier League football within the UK is Sky.
Whilst this argument certainly carries some weight, it is undermined when one considers that whilst on the one hand Sky are quite content to provide subscriptions and decoders to customers based outside the UK, for example, Spain and other popular British tourist destinations, they appear to be unwilling to allow competition from other EU broadcasters within the UK.
The high price of a commercial Sky subscription on licensed premises means that these foreign alternatives are commercially much more attractive.
Matters become even more complicated when one considers that the foreign broadcasters are able to broadcast Premier League football at 3:00pm on a Saturday afternoon, a situation with which Sky cannot compete due to the fact that the Premier League television deal requires a “closed period” to ensure that attendance of the games is unaffected.
Regardless of the decision in the Portsmouth appeal, the practice of licensed premises showing foreign satellite broadcasters is surrounded by controversy following the decision of the English Premiership club, Bolton Wanderers, to seek a Premises Licence review of five public houses in the Bolton area.
The recent UK Licensing Act Reforms created four licensing objectives which premises must adhere to and uphold at all times.
One of these licensing objectives was the prevention of crime and disorder. Bolton Wanderers claim that the showing of foreign satellite football is a criminal act and that the premises are failing in their duty to uphold the objective of preventing crime and disorder.
The Licensing Act 2003 allows local people and local businesses to seek review of licenses where they feel premises are being run contrary to the licensing objectives.
Bolton Wanderers are now using these powers to try and remove the Premises Licences of public houses which they consider are engaged in illegal conduct. The local authority have rejected Bolton Wanderers’ attempt to review the licences, on the grounds Bolton Wanderers are not “in the vicinity” of the pubs in question. It remains to be seen what Bolton Wanderers next move will be.
Given the sums of money involved and the potential impact upon individual licensees whose conduct may be found to be unlawful, resulting in loss of their licences and livelihood, it appears it is high time the Government took action and clarified the law in this area.