22 January 2008

The Devil's Fishbowl

Two interesting copyright cases involving association football appeared on different updating services yesterday. Both arose from the almost compulsory showing in public houses of television broadcasts of English soccer matches - one of several matters that keeps me away from public houses. I did watch the rugby world cup final on a wide screen TV, though at Sutton United FC's clubhouse rather than in a pub, being there for a Stackridge gig which turned out to have been organised for one of the worst possible evenings of the year, and was irritated by the distortion of picture. Rugby players are often strangely shaped, but why should public wide screens always be set with the wrong aspect ration to they appear almost round?

I digress. Association football might still be referred to as the beautiful game, but (just as the practice of law has changed from being a profession to being a trade) it is driven by the imperatives of business. The rights to broadcast the matches are jealously guarded and bought and sold for such amounts that only Croesus, Rupert Murdoch or one or two others need apply. The broadcasts are transmitted by satellite and may be received by those who have contributed to the treasuries of the broadcasters, their contributions passing to the body that controls the rights (essentially, rights of access to the grounds where the matches are played) and thence in turn, a proportion being retained at each stage, to the football "clubs" (public, or sometimes private, limited companies rather than the cosy membership organisations that the name implies), to the players, and to Bentley Motors (or "BMW", as it is sometimes called).

In among these tsunamis of sterling and other currencies, it is not surprising to find an assortment of bottom-feeders looking for pickings from the rich people's feasts. They might, as in The Football Association Premier League Ltd v QC Leisure and others [2008] EWHC 44 (Ch) (not yet on BAILII), obtain satellite decoder cards "through subterfuge" in a country where they cost less than in the UK (in the instant case, Greece), and sell them to UK publicans, who themselves might then be prosecuted under the criminal provisions of the Copyright, Designs and Patents Act 1988, in particular section 297(1). It was an appeal by way of case stated against such a conviction that came before the Queen's Bench Division in Karen Murphy v Media Protection Services Ltd [2007] EWHC 3091 - one of the last cases heard by Pumphrey LJ, sitting with Stanley Burton J.

The first of this brace of cases gave rise to a Euro-defence, based on Article 81 of the EC Treaty. The Football Association had sued the defendants in the first two actions (there was also an action in which the defendants were publicans) for breaches of sections 298 and 299 of the 1988 Act, and for authorising and procuring others to copy certain copyright works. The defendants argued that the prohibition on the sale of decoder cards to people outside the broadcaster's territory was based upon or was the consequence of agreements between undertakings or concerted practices and that the prohibition had as its object or effect the prevention, restriction or distortion of competition in the common market. The claimant, unimpressed, sought summary judgment.

The FA contended that the seminal judgment of the Court of Justice of the European Communities in Case 262/81, Coditel v Cine-Vog [1982] ECR 3381, which case I saw in progress on a visit to the court in about 1980, had decided that the territorial exclusivity of licences of copyright in broadcasts did not offend Article 81. However, the court observed that the contractual provisions at issue in the case before it went beyond the mere grant of an exclusive right. They required the foreign broadcaster to "procure" that non-UK decoder cards were not authorised or enabled by it, or any sub-licensee or distributor, or agent or employee of such persons so that anyone could view the broadcast outside the licensee's territory. The scope of Coditel was narrow, being confined to the grant of an exclusive licence, and it was therefore not determinative of the Euro-defence, about which we can therefore hope to hear more in future proceedings.

As for Ms Murphy, her defence was that, under section 6(4) of the 1988 Act, the place at which the broadcast she picked up was made - where the programme-carrying signals were introduced into an uninterrupted chain of communication - was in Greece, so the offence was not made out. The court declined to follow this logic.

The first thing to do was to identify the programme included in the broadcasting service, then to work out where that broadcasting service was provided from. The initial transmission of the programme for ultimate reception by the public took place at the match in the UK. A broadcasting service was nothing more than a succession of electronic transmissions of visual images, sounds and other information, so what the broadcasting organisation (BSkyB, the FA's exclusive licensee) created those images etc. passed to the FA was itself a broadcast.

As for the mens rea of the offence, it sufficed that the defendant, knowing that the broadcaster had an exclusive territorial licence and was entitled to charge customers a fee to receive the programmes, arranged to receive the broadcasts without paying the fee.

(I can't make a link from the title, so here's the URL I would have linked it to.)

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