B.B.C. Enterprises Ltd v Hi-Tech Xtravision Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Emslie,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner |
| Judgment Date | 06 June 1991 |
| Judgment citation (vLex) | [1991] UKHL J0606-1 |
| Date | 06 June 1991 |
| Court | House of Lords |
[1991] UKHL J0606-1
House of Lords
Lord Keith of Kinkel
Lord Emslie
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Brandon of Oakbrook I would dismiss this appeal.
My Lords,
This appeal arises out of the comparatively recent development of commercial broadcasting of television programmes by means of satellites, and the difficulties with which broadcasters using this technique are faced in making and effectively collecting charges for the reception of such programmes.
The respondents are B.B.C. Enterprises Ltd. ("Enterprises") and the appellants are Hi-Tech Xtravision Ltd. ("Hi-Tech"). Enterprises are a wholly-owned subsidiary of the British Broadcasting Corporation ("the B.B.C.") and have been described as the latter's commercial arm. Among the activities of Enterprises is the broadcasting from the United Kingdom of television programmes (mainly B.B.C. 1) in what is called the B.B.C. Europe Service. The broadcasting is by means of a fixed satellite system ("F.S.S.") and the area of reception (known as "the footprint") is the greater part of Western Europe.
Enterprises have thought it impracticable to collect charges for the reception of their programmes directly from those who receive them. Nor is it open to Enterprises to finance the programmes by including advertisements in them. In these circumstances Enterprises have chosen to adopt an indirect method of making charges which works in this way. The broadcasts concerned are sent out in an encrypted (i.e. encoded) form, so that those who wish to receive them can only do so if they have available for use a suitable decoder connected to their television sets. Enterprises have entered into two contracts with Space Communications (Sat-Tel) Ltd. ("Sat-Tel") which contain the following provisions. First, Enterprises are to use the scrambling technology of Sat-Tel in the encrypting process. Secondly, Enterprises are only to authorise for use by receivers of the programmes decoding devices (decoders) designed and made by Sat-Tel. Thirdly, for direct to home ("D.T.H.") reception the decoders are only to be sold to the public by Sat-Tel or distributors authorised by them, except in special circumstances. Fourthly, part of the sale price of each decoder is to be paid by Sat-Tel to Enterprises. That part is to be £100 in respect of each decoder sold up to 31 March 1990 and £50 thereafter. The B.B.C. Europe Service in its encrypted form is capable of being received by persons in the United Kingdom who have the necessary decoders. The service is not, however, intended to be so received, since persons in the United Kingdom can receive all the programmes concerned in unencrypted form subject only to payment of the prescibed television licence fee.
Hi-Tech are specialist manufacturers of decoders. They have, without the consent of Enterprises, made decoders of their own design, capable of decoding the B.B.C. Europe Service, and have arranged for them to be sold to television users in Western Europe. The price at which Hi-Tech's decoders have been sold is considerably less than the price charged by Sat-Tel and their distributors for their decoders. Hi-Tech have expressed their willingness to pay to Enterprises in respect of the sale of each decoder made by Hi-Tech the same sums as Sat-Tel have contracted to pay to Enterprises in respect of Sat-Tel's decoders, although not admitting any liability to do so. This offer has not been accepted by Enterprises, who have instead brought the proceedings which have given rise to this appeal.
Those proceedings took the form of an action brought by Enterprises against Hi-Tech and various sellers of Hi-Tech's decoders in the Chancery Division of the High Court on 21 August 1989. In that action Enterprises claimed injunctions restraining all the defendants from making, importing, selling or letting for hire any apparatus or device designed or adapted to enable persons to receive the B.B.C. Europe Service. On 21 August 1989 Enterprises applied for interim relief and on 27 September 1989 Hi-Tech applied for an order dismissing the action on the ground that the statement of claim disclosed no reasonable cause of action. Both applications came for hearing before Scott J. on 20 November 1989, who by order of that date struck out the statement of claim and dismissed the action so far as each of them related to Hi-Tech. Enterprises appealed to the Court of Appeal (Sir Nicolas Browne-Wilkinson V.-C., Staughton and Beldam L.JJ.) which by an order dated 21 December 1989 allowed the appeal and set aside the order of Scott J [1990] Ch. 609. Hi-Tech now bring this further appeal against the order of the Court of Appeal by leave of your Lordships' House.
The case for Enterprises is founded on section 298( 1) and (2) of the Copyright, Designs and Patents Act 1988. That section is one of three sections, sections 297, 298 and 299, which are grouped together in Part VII of the Act under the cross-heading "Fraudulent reception of transmissions." Those three sections, so far as material, provide as follows:
"297(1) A person who dishonestly receives a programme included in a broadcasting or cable programme 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."
"298(1) A person who -
(a) makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in the United Kingdom, or
(b) sends encrypted transmissions of any other description from a place in the United Kingdom,
is entitled to the following rights and remedies.
(2) He has the same rights and remedies against a person who -
(a) makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so, or
(b) publishes any information which is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so,
as a copyright owner has in respect of an infringement of copyright. …"
"299. (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.
(2) No such Order shall be made unless it appears to Her Majesty that provision has been or will be made under the laws of that country or territory giving adequate protection to persons making charges for programmes included in broadcasting or cable programme services provided from the United Kingdom or, as the case may be, for encrypted transmissions sent from the United Kingdom. …"
I referred earlier to Enterprises having chosen to adopt the indirect method of making charges which I described for the reception of the programmes broadcast by them in the B.B.C. Europe Service. This indirect method of making charges was statutorily authorised in the case of direct by satellite ("D.B.S.") broadcasting services by sections 39( 1) and 43(5) of the Cable and Broadcasting Act 1984. This Act was repealed by the Broadcasting Act 1990, but for present purposes that repeal is not material.
Section 39(1) of the Act of 1984, dealing with contractors providing programmes for the Independent Broadcasting Authority ("I.B.A.") provided:
"For the purpose of enabling a D.B.S. programme … contractor to make charges for the reception of programmes provided by him or transmissions containing material so provided,...
To continue reading
Request your trial
-
Munhwa Broadcasting Corporation and Ors v Young International 2009 Ltd and Anor Hc Ak
...Therefore, Mr Katz says, World TV satisfies the requirements of s 228 and the extended definitions. 119 Mr Katz refers to BBC Enterprises Ltd v Hi-Tech Xtravision Ltd25 and other English authorities to show that s 228 (the equivalent of s 298 in the United Kingdom Act) is intended to protec......