In the March 2007 Law Updates we reported on the case of MPS v Murphy as well as the case of FACT v Gannon. Murphy has now been heard on appeal with the Crown Court finding her guilty under s297(1) of the Copyright Designs & Patents Act 1988. Karen Murphy, of the Red, White and Blue public house in Southsea will face fines and costs of around £12,000. Murphy was found guilty in January of showing Premiership games via Greek satellite channel Nova at her pub. Murphy had been acquitted of the same offence once before because District Judge Arnold found she had not acted dishonestly – because she did not know she was breaking the law. Murphy continued to show the games and was prosecuted again and was found guilty on her second appearance by the same judge. Upholding District Judge Arnold’s decision, HH Judge Iain Pearson told Murphy today that he felt she knew what she was doing was illegal and she was “hiding” behind the legal advice of her solicitor. Judge Pearson, who sat with two lay justices, said: “In our view Murphy hid behind the legal advice as a convenient shield with which to hide her dishonesty .” Critically Judge Pearson said in his judgment that he believed the Greek (Nova) football programme being shown in the pub was contained in a broadcast emanating from the UK – without interruption – and therefore a fee should have been payable to Sky. He therefore upheld the magistrates’ court’s decision.
Ben Challis comments: I still find it difficult to see how the Football Association Premiere League can assert that this is a UK broadcast or how Judge Pearson agreed with this. Remember – s297(1) only applies to broadcasts from the UK where use is without paying the proper fee (section 299 would apply to ‘foreign’ broadcasts but this has yet to be enacted into law) and I would also add that MS Murphy did actually pay Nova a fee. From a ‘legal’ perspective surely this Nova signal is a broadcast that has been licensed to a foreign (eg non-UK) broadcaster. I know it’s based on the same ‘pictures’ that Sky have on their service (and therefore my argument may well seem to fly in the face of common sense) but I do feel that the programme signal Ms Murphy was using was non-UK – both legally and technically. The FAPL have licensed the signal to Greece and so surely this ‘version’ of the feed of the match is Greek – and equally as the footage feed is uploaded from the FAPL’s match coverage contractor in the UK BUT is then downloaded and re-uploaded in Greece for the Greek market this surely technically is a Greek programme. However it will be interesting to see if Karen Murphy (perhaps if her brewery chip in) see fit to appeal this case onwards on a point of law – it may just be too costly. It will also be interesting to see if European Competition regulators take a passing look at the situation – and the alleged market dominance by Sky which has resulted in sharp criticism from publicans – or indeed take a look the whole ‘market’ in the use of signals in territories outside of which they are licensed – something which might leave Sky vulnerable in markets such as Spain. http://www.morningadvertiser.co.uk/news_detail.aspx?articleid=29115