Full case report

Murphy v Media Protection Services Ltd

Reference [2007] EWHC 3091 (Admin)
Court Administrative Court

Judge Pumfrey LJ and Stanley Burnton J

Date of Judgment 21 Dec 2007


Summary

Copyright – Broadcasts – Criminal offences – ss.6, 297(1) Copyright, Designs and Patents Act 1988 – EC Directive 93/83 – Dishonestly receiving programme included in broadcasting service provided from place in UK with intent to avoid payment of applicable charge – Place from which broadcasting service provided – Transmission by continuous chain of communications – Intent


Facts

M, a pub landlady, showed 2 live Premier League (“PL”) football matches in her pub, received via Greek channel NOVA to which she had a subscription. NOVA was licensed to show Premier League games in Greece but not in the UK, where BSkyB was the exclusive licensee for live games.

M was convicted of 2 offences contrary to s.297(1) of the CDPA 1988, namely that on 2 dates in 2006 she “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”.

M appealed by way of case stated.


Issue

1. For the purposes of s.297(1) of the CDPA, is it a requirement that the broadcasting service or broadcaster providing the programme in question is based in the UK?

2. Were the PL or BSkyB broadcasters, or did they provide a broadcasting service within the meaning of s.297(1) and s.6 CDPA?

3. Was the live feed of sounds and pictures provided to NOVA a broadcast or a programme included in a broadcasting service within the meaning of the CDPA?

4. If so, was the said signal from the BSkyB camera to the PL and from the PL to NOVA and from NOVA to the Appellant part of a continuous chain of communications within the meaning of s.6(4) of the CDPA and article 1(2)(b) of the EC Directive 93/83?

5. Was the requisite “intent to avoid any charge applicable to the reception of the programme” present when M had paid a charge to an entity selling NOVA decoders and cards in the UK and then received a programme from NOVA?


Held

Dismissing the appeal:*

1. The question was ambiguous. The place from which the broadcasting service is provided is where the initial transmission of the programme for ultimate reception by the public took place. Here that was the UK.

2. The PL and BSkyB were both the broadcaster, since they had editorial responsibility “for the composition of schedules of television programmes” in respect of the transmitted matches.

3. Yes.

4. This question did not arise. The definition in s.6 was unaffected by the manner of transmission between origin and public where the identity of the programme is not affected.

5. Yes. It was sufficient that M (1) knew that the broadcaster had the exclusive right in this country and charged for reception of its broadcasts, and (2) made arrangements to receive those broadcasts without paying the charge. The fact that a charge was paid to NOVA, who M knew did not have the right to broadcast in the UK, was not inconsistent with that intent.


Comment

*The Court noted that it had not heard argument on the impact of the Single Market Rules or upon the competition law issue raised by M that “the Respondent’s case is effectively founded on an agreement or a network of agreements imposing restrictions unlawful and void under Art 81 EC” and the appeal was therefore dismissed subject to a day being set aside for further argument on those issues only.


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Instructing Solicitors

Molesworths Bright Clegg for the Appellant; Russell-Cooke LLP for the Respondent


Links

BBC - Court rules against pub TV appeal