Rechtsanwalt, Legal Director
Out-Law News | 13 Mar 2012 | 12:52 pm | 5 min. read
The Court said that Karen Murphy had been wrongly found guilty of violating UK copyright laws. This is because Murphy had paid for a service offered by a foreign satellite decoder provider and follows clarifications the European Court of Justice (ECJ) had issued in relation to the use of such decoders to show matches in the UK. Murphy had previously been ordered to pay £8,000 in fines and costs for a breach of the Copyright, Designs and Patents Act (CDPA).
However, pub landlords could still face legal action for copyright infringement as a result of the ECJ's other findings and how the High Court in the UK applied them in a separate ruling last month, a copyright law expert has said.
Murphy bought a foreign decoder to show live FAPL football matches in her pub. The subscription to the service was cheaper than the UK service operated by BSkyB.
The Premier League licensed the right to show live games to BSkyB in the UK and sub-licensed the right for other European broadcasters to show games. Murphy bought a decoder card that gave her access to Greek channel Nova's coverage of the games.
The Premier League and BSkyB claimed that this was prohibited because broadcaster agreements prevented customers from using the decoders "outside the national territory concerned" and that the activity was in breach of copyright law.
However, the ECJ ruled that broadcasters and other rights holders cannot create licences for broadcasters that stop them selling their services to other EU countries because that is a breach of EU competition laws.
The ECJ had also ruled that decoder devices could not be considered an "illicit device" because of how the term is defined under the EU's Conditional Access Directive. That Directive requires EU member states to "prohibit on their territory ... the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices; the installation, maintenance or replacement for commercial purposes of an illicit device; the use of commercial communications to promote illicit devices".
Media Protection Services, which takes action against pubs which show football in contravention of Sky's conditions, took Murphy to court over her use of the Greek decoder. Murphy was originally convicted of a breach of Section 297 of the CDPA. Under that section "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 and is liable on summary conviction to a fine".
In 2008 the High Court heard arguments from Murphy that she could not have had "intent to avoid payment of any charge applicable to the reception of the programme," because she had paid a charge, to Nova.
She said that if the Sky charge was the only 'applicable charge' because of geographically exclusive contracts signed by it and the owner of the footballing rights, then that deal, which forbade the export of decoder cards from one country to another, contravened EC free trade laws. Questions relating to the free trade rights were then referred to the ECJ for adjudication.
Lord Justice Burnton previously said in 2008 that if the ECJ agreed with Murphy, then there would be no offence that she would have been deemed to have committed. The same judge has now confirmed that Murphy was wrongly convicted.
"[Murphy] had paid for her card, She had not avoided any charge applicable to its use and had not acted dishonestly. As is conceded by [Media Protection Services], it follows that [Murphy] was wrongly convicted, her appeal will be allowed and the convictions quashed," Lord Justice Burnton said in his ruling.
Last month the High Court ruled that showing FAPL matches on screens in pubs using foreign satellite decoders would infringe the FAPL's film copyright except that landlords could rely on a specific defence under the CDPA meaning they would not be liable for infringing the copyright in the visual elements of the film and its soundtrack, such as live commentary and crowd noise, if they did not charge customers to enter the pub to watch the games.
That defence does not apply to copyrighted sound recordings or to graphics or logos shown on the screens, though, making it hard for pubs to show games without infringing copyright unless they can obtain a feed of the game without broadcasters' additional material.
The Court had previously determined that "the defence is limited to the free showing or playing in public of a broadcast, and certain sound recordings and films included in it" but that landlords would still be regarded as having infringed on the FAPL's rights if they showed logos, graphics and other ancillary copyright works contained in the broadcasts.
In its ruling in February the Court also determined that the FAPL 'anthem' that accompanies elements of broadcasters' coverage of matches was also outside the scope of the defence, meaning landlords that play broadcasts of the anthem out loud would be liable for copyright infringement. The defence applied only to the sound recording of the anthem, not the anthem as a musical work in itself.
In the case the FAPL is suing some pub landlords claiming that they were liable for copyright infringement when they showed coverage of matches without having a legitimate licence to broadcast the games in the UK. FAPL has also claimed that two companies providing the satellite decoders, QC Leisure (QC) and AV Station plc (AV), were also liable for that infringement. AV has subsequently gone out of business.
However, Lord Justice Kitchin said that pub landlords and foreign satellite decoder providers "must be entitled to carry on their businesses in a way which avoids infringement of FAPL's copyrights if they are able to do so".
Since the High Court's ruling Euroview Sport Limited, a company that provides foreign satellite decoder services, has withdrawn its service to landlords. The company posted a legal notice on its website that said it would alter its service in order to avoid infringing copyright.
Kim Walker, specialist in copyright law at Pinsent Masons LLP, the law firm behind Out-Law.com, said that the Murphy judgment reflected the ECJ’s ruling that pub landlords can legitimately use foreign satellite decoder cards to show FAPL games, providing they do not breach the copyright that subsists in the coverage.
“The outcome of this ruling is not unexpected given the ECJ’s finding that the use of foreign satellite decoders is legitimate,” Walker said.
“However, it does not change the fact that, in practical terms, it is currently very difficult for pub landlords to show games without infringing the copyrights that are shown as part of coverage of games, such as in highlights packages, logos and graphics. We understand though that the suppliers of the decoders are working on providing a broadcast feed of games coverage that does not infringe FAPL or Sky copyrights. It will be interesting to see whether this is technically feasible and how FAPL would respond in order to protect the value of its rights,” he said.
Rechtsanwalt, Legal Director