Karen Murphy is a publican who cancelled her contract with Sky
Sports for its Premiership football service and bought a satellite
signal decoder card and subscription from Greek company Nova for a
price that was considerably cheaper than that of the UK's Sky
service.
Media Protection Services, which investigates and takes action
against pubs which show football in contravention of Sky's
conditions, Murphy to court over her use of the Nova system.
The suit argued that Murphy was breaking copyright law by
showing the matches from the Nova system rather than the Sky
system. Sky had paid significant sums to the Premier League for the
right to sole UK broadcasting rights.
The case claimed that Murphy had breached the section of the
Copyright, Designs and Patents Act because 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."
The EU's Copyright Directive refers to 'illicit devices'. Murphy
claimed that her Nova card-fitted system was not an illicit device
because that phrase should refer only to pirated devices, not to
legitimate ones which are simply used in a different EU
country.
Secondly she argued that to rule that she could not buy a
legitimate service in Greece and use it in the UK was contrary to
EU free trade rules.
Murphy's appeal was heard in the High Court, which had already
heard an appeal on the non-EC law aspects of the case and referred
its own questions to the ECJ.
Murphy's case, said Lord Justice Stanley Burton, was that
"national measures restricting cross-border trade in respect of
decoder cards originally put on the market in another Member State
with the consent of the service provider are restrictions on free
movement which cannot be justified under EC law".
Media Protection Services said that in a previous ruling
involving Coditel the ECJ had said that it was possible to protect
copyrighted works without falling foul of free trade laws.
"In that case the ECJ held that copyright in performances such
as the showing of a film may be validly licensed and exploited on a
national territorial basis without falling foul of the Treaty's
free movement rules," said the ruling. "This was because copyright
in films was not to be analysed in the same way as copyright in
such works as books and sound recordings. The film belonged to the
category of literary or artistic work which could be infinitely
repeated by way of performance…thus, said the ECJ, the right to
receive a fee for each showing of a film was "part of the essential
function of copyright" in that category of artistic work."
"[Media Protection Services] says that the satellite broadcast
in this case is indistinguishable in material terms from the
broadcast of the film in question… with the result that the Premier
League's copyright protection for broadcast coverage of its
football matches gave it the right to license that coverage to
different broadcasters in different Member States and to do so on
terms which ensure that the geographical limits in each of those
licences can be enforced," it said.
Murphy argued in court that she cannot have had, in the language
of the Copyright, Designs and Patents Act, "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 this deal, which forbade the
export of decoder cards from one country to another, contravened EC
free trade laws.
"[Murphy] contends that this export ban falls within the
prohibition in Article 81(1) of the EC Treaty as being an agreement
which is liable to affect trade between Member States and which has
as its object or effect the prevention, restriction or distortion
of competition within the Common Market," said the ruling. "As such
the Appellant submits that it is prohibited and automatically void
by virtue of Article 81(2)."
Should the ECJ agree with Murphy, Lord Justice Burton said, then
there will be no offence that she will be deemed to have
committed.
"If the contractual export ban is unlawful and unenforceable
then absolute territorial protection, upon which the Respondent
relies in order to establish that within the United Kingdom BSkyB
has the exclusive right in question, does not in fact exist. In
those circumstances…the subscription charge exacted by BSkyB would
not be "applicable" to the programme screened by [Murphy], and the
offence of which she has been convicted would fall away."
The Court decided to refer questions to the ECJ to settle the
issues of EC law, saying that the questions could have a major
impact on the world of football, whose commercial clout has
rocketed on the back of lucrative, country-specific TV deals.
"The EC law issues in this case are clearly such that their
resolution may well have a substantial impact on the way in which
programmes of the kind with which this case is concerned are
licensed and broadcast throughout the EU, and on the ways in which
the intellectual property rights in question are remunerated and in
which competition takes place in the relevant markets," said the
judge.
Lord Justice Burton said that he had some problems with the case
as a whole. "We digress at this stage to voice our unease about the
bringing of a prosecution under [section 297 of the Copyright,
Designs and Patents Act] in circumstances where the establishment
of an essential element in the offence, namely "intent to avoid
payment of any charge applicable to the reception of the
programme", depends upon the compatibility with EC law of an export
ban imposed in a licence agreement between two companies who are
legally strangers to the purchaser and user of the decoder card in
question who is the defendant to the criminal charge," he said.
"It seems to us unlikely that the legislature would have
envisaged that the applicability of the avoided charge to the
programme received by a defendant would be dependent upon something
so remote from that defendant's own knowledge," he said.
