FACT v Gannon, MPS v Murphy
By Ben Challis, barrister
Whilst supping a pint and watching England’s abysmal performance against Spain the other day, my lovely pub landlady asked me to look at a letter she had received from Sky TV. Now this pub is a properly licensed Sky pub but the letter referred to the broadcasting of premiership football – which is played out in ‘non-Sky’ pubs using foreign subscription services. These non-UK services legally acquire the rights to show the Premiership matches in say Greece and Poland by satellite broadcast but the signals can be ‘re-captured’ back in the UK as satellite footprints tend to be pan-European in their very nature, unfettered by national borders.
The economics of this are important: BSkyB and Setanta Sports are reportedly paying £1.7 billion to hold the exclusive rights to screen live matches to the English Premiership in Britain for the next three years. Broadcasters in 208 other countries have recently doubled their payments to secure English premiership rights to a combined £625 million (The Observer, 12/02/07). To recoup their investment Sky charges consumers to subscribe to Sky and of course charges pubs and clubs a fee to publicly show Sky TV in a place of business (cf S72 Copyright Designs &Patents Act 1988). A public house will usually pay at least £1,000 per month (or £12,000 per annum) for Sky Television and whilst this includes Sky Sports and Sky Sports News it will not include all live premiership matches. An additional payment is needed for the full service.
However, pubs are able to receive satellite signals from non-UK satellite broadcasters which also contain live English Premiership football – and many publicans can and do use these services and consequently there have been a recent spate of cases about the liability of publicans for using these services, the legality of decoders sold to pubs to receive these services and indeed whether or not publicans are guilty of a criminal offence. Sky have written to Landlords saying that the Football Association Premiership League has begun two High Court actions against two suppliers of foreign satellite equipment in the (AV Station and separately against QC Leisure). But this article looks at the issue of criminal charges against publicans.
Sky have highlighted the successful prosecution of a publican in the case of Media Protection Services v Murphy. Here a South Coast publican was found guilty on two charges of copyright infringement after District Judge Arnold appears to have ruled that screening live matches via any other broadcaster than Sky was illegal. Sky owns the exclusive rights to screen the Premiership live in the UK under licence from the Football Association Premiership League (FAPL). It was held that the act was illegal as it breached Sky’s copyright. The charge was brought under s297(1) of the Copyright Designs & Patents Act 1988 and the publican was found guilty of dishonestly receiving a programme with intent to avoid payment (the publican had been up before the DJ on a previous occasion on the same charge) and was fined £3000 and £5000 costs. The Nova TV signal came from Greece and the pub subscribed for this service. The facts of Murphy highlights the economics of the issue – it was pointed out that the pub was paying only £750 for the Nova subscription compared to the comparative cost of £4,000 for a similar Sky service. However Murphy also highlights one of the main issues with S297(1) in as much as the statute appears to be limited to signals received from service provided in the UK:
297 Offence of fraudulently receiving programmes
(1) 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 not exceeding level 5 on the standard scale.
Section 297A of the provides that
(1) A person commits an offence if he –
(a) makes, imports, distributes, sells or lets for hire or offers or exposes for sale
or hire any unauthorised decoder;
(b) has in his possession for commercial purposes any unauthorised decoder; or
(d) advertises any unauthorised decoder for sale or hire or otherwise promotes any
unauthorised decoder by means of commercial communications .
I have added emphasis to the wording of 297(1) as the section states that the provisions apply only to a ‘broadcasting service provided from a place in the United Kingdom’. Professor William Cornish (2003 pp518-520) says that within Europe as a result of the Satellite & Cable Directive (Dir 83/93 SI 1996/2967) broadcasting occurs at the stage of the ‘up-leg’ to the satellite rather than at the down-leg to reception. Using this argument surely this is not a broadcasting service provided from a place in the United Kingdom. Whilst the signal originated in the United Kingdom, that signal is then sent to and received in Greece and in effect ‘re-packaged’, to then be subsequently re-broadcast by way of satellite to the (primarily) Greek market as a legal signal. But of course with a pan-European footprint the satellite signal can be picked up in the UK just as Sky’s satellite signal can be picked up in Spain and France. But it is up-legged in Greece.
Before going on it is sensible to remember that this is a complicated area involving both competition law and copyright issues. The decision of the European Court of Justice in Cine Vog v Coditel (No1) is material: Here it was successfully argued that the re-transmission of a French film, La Boucher, shown by (and legally licensed to) a German Channel in Belgium by a different Belgium channel was unlicensed and an infringement of Belgian copyright law. The Belgian company had argued that the first transmission in Germany had exhausted any rights in the material throughout the European Community but the ECJ did not accept this and held that territorial licensing was a justifiable method of maximising the economic potential of a copyright (Cornish, 2003 pp518-520) although it is prudent to note measures to promote European free trade under the provisions of the Television Without Frontiers Directive. But here we have a signal from Greece received by way of satellite – not a ‘re-transmission’ – and all that happens is that signal is then used to screen football in a pub in the UK .
The dilemma for Sky appears to be this: Whilst Sky have the exclusive broadcast rights for certain FAPL matches in the UK, The Nova signal itself is also licensed by FAPL and is therefore at least in theory when up-legged it is legal as part of a licensed satellite broadcast. It only becomes illegal in the UK if it is re-transmitted – by another broadcaster. But here we are not looking a re-transmission.
An examination of recent court cases finds a range of decisions relating to prosecutions under s297(1): The case ofFlint concerned the Original Bay Horse, Horwich, Bolton. Here the publican was cleared by magistrates of using a decoder and foreign subscription card as the court found that the publican had not acted dishonestly and did not avoid paying a fee and indeed the justices decided no fee payable was payable. Again in Moss magistrates found the publican not guilty of the offence charged, finding no dishonesty. The leading decision appears to be that of the Bolton Crown Court, sitting as an appeal court from the Rochdale Magistrates Court in Federation Against Copyright Theft v Gannon. Brian Gannon, the owner of the Fishermans Inn in Rochdale had been found guilty by Magistrates of contravening s297(1) of the CDPA. Gannon appealed to the Crown Court and on Friday 24th March 2006, HHJ Warnock, sitting with two lay Justices, upheld Gannon’s appeal. In delivering the court’s decision, it seems HHJ Warnock said that not only was the court satisfied that Brian had not been dishonest, but that the Federation Against Copyright Theft who brought the case had not even established vital generic elements of the alleged offence. According to press reports the court held that they were not satisfied so they were sure
- that the signal that emanated for the UK constituted a broadcast within the purposes of s6(1) and 297 of the CDPA: the signal was a multipoint broadcast to subsequent broadcasters outside of the jurisdiction and was not a broadcast to customers as such.
The Crown Court were further not satisfied so they were sure
- That the broadcast from the UK was an uninterrupted signal to the Fisherman’s Inn at Rochdale
However the court was also not satisfied that it was sure that
- That the signal received by the pub was in effect a re-transmission from Greece (but doubted the significance of such a finding given the effect of s299 of the CDPA which provides that (1) Her Majesty may by Order in Council – (a) provide that section 297 applies in relation to programmes included in services provided from a country or territory outside the United Kingdom, and (b) provide that section 298 applies in relation to such programmes and to encrypted transmissions sent from such a country or territory .)
The Court was satisfied so it was sure that
- there had been unlawful use of UEFA’s and the Football Association Premiership League’s intellectual property rights BUT held that they were not sure that any charge would exist in criminal law and in all events such a charge had not been put to Mr Gannon.
So here the Crown Court differed from District Judge Arnold who (and again according to press reports) found that the signals received in the Plymouth pub run by Ms Murphy were the same signals that were broadcast in the UK which were ” subjected to nothing more than normal technical procedures which… should not be considered as interruptions to the chain of broadcasting.” and so were a broadcasting service provided from the U K. Here I have to differ from District Judge Arnold; as Cornish says (above) and leaning towards the approach in Cine Vog the signal is surely a signal from a Greek broadcaster; In fact it is hard to see how the FAPL could argue (or can be allowed to argue otherwise) as the FAPL have licensed this broadcast as a separate satellite broadcast outside of the United Kingdom and thus when looking at a the Nova service as licensed by the FAPL surely this cannot be a UK broadcast. In my own very limited experience of the technical basis of satellite broadcasting gained when I worked at a pan-European satellite broadcaster, this is also a ‘non UK’ signal technically: despite the fact that the content of Greek signal is the ‘same’ as the feed that the UK, it emanates as a broadcast from Greece: thus the cautious approach of the Crown Court in Gannon must surely be correct.
So, where does this leave Sky and FAPL? HRH Judge Warnock has made it clear (post judgment) that the Crown Court did not find the use of foreign satellite services legal. Indeed the Court said there had been unlawful use of the FAPL’s copyrights. What the Court said was that the necessary mens rea (the actual dishonesty) for the alleged offence committed by Mr Gannon under s297(1) was not established. But when looking at the offence as charged, surely s297(1) can only be constructed to apply to publicans who in effect take a UK Sky signal and show this without paying Sky the proper subscription fees. I would add to this that it would be an infringement of copyright under s16(1) and s16(2) of the Copyright Designs and Patents Act 1988 for another UK broadcaster to take Sky’s signal and re-transmit this and of course it would be an infringement of copyright for Sky or any other UK broadcaster to take a broadcast from a foreign broadcaster (whether terrestrial, satellite or cable) and re-transmit this without permission in the UK except under fair dealing provisions. So taking a foreign signal and publicly showing this in a pub may be an infringement under sections 16(1), 16(2) and 19 of the CDPA as they may constitute performing showing or playing a work in public but even if this was so, how could that lead to the conclusions that such an act was a criminal offence under s297(1)?
This writer remains confused and has noted that Murphy will be heard on appeal at the Plymouth Crown Court on March 12th and 13th. The writer also notes that Bolton Football Club have asked for a review of five local pub’s premises licences on the grounds that by showing premiership football they are committing ‘criminal’ offences and that the prevention of crime is one of the four stated licensing objectives under the Licensing Act 2003 but again this writer wonders what the ‘crime’ actually is here.
Copyright Designs & Patents Act 1988 (as amended) HMSO accessed 12 February 2007 at
Satellite & Cable Directive (Dir 83/93 SI 1996/2967)
Cornish, W. and Llewelyn, R. (2003) Intellectual Property Sweet & Maxwell: London
Cine Vog v Coditel (No1 ) [1980 ECR 881]
FACT v Gannon (2006) http://www.pubfootball.co.uk/law.php accessed 12 February 2007 Please note this is not a confirmed official court record or law report and indeed this source is a site designed to promote the uptake of foreign satellite services. Flint (2006) is taken from the same source.
For background on FACT v Gannon and MPS v Murphy seehttp://www.morningadvertiser.co.uk/news_detail.aspx?articleid=17168&categoryid=35