Murphy v Media Protection Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton |
| Judgment Date | 16 July 2008 |
| Neutral Citation | [2007] EWHC 3091 (Admin),[2008] EWHC 1666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7259/2007,Case No: CO/7295/2007 |
| Date | 16 July 2008 |
[2007] EWHC 3091 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
ON APPEAL BY WAY OF CASE STATED
FROM PORTSMOUTH CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The RT Hon Lord Justice Pumfrey and
the Hon Mr Justice Stanley Burnton
Case No: CO/7259/2007
Winston R O Hunter QC and Martin Howe QC (instructed by Molesworths Bright Clegg) for the Appellant
Edward Jenkins QC, James Mellor QC, Aidan Robertson and Miles Bennett (instructed by Russell-Cooke LLP) for the Respondent
Hearing dates: 29–30 November 2007
Lord Justice Pumfrey :
This is the judgment of the Court.
This is an appeal by way of case stated against the dismissal by the Crown Court at Portsmouth of Karen Murphy's appeal against conviction by Portsmouth magistrates for two offences contrary to s.297(1) of the Copyright, Designs and Patents Act 1988 ("the CDPA"). The charges against Ms Murphy were that on 19 th August 2006 and on 25 th September 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".
The Facts
So far as material, the facts stated are as follows. The Premier League (referred to as FAPL in the papers from time to time) owns the intellectual property rights in relation to the screening of live Premier League football matches. It grants exclusive licences to licensees to screen live Premier League matches in the licensees' respective territories. In the United Kingdom and Ireland at all relevant times the sole licensee was BSkyB.
The programmes received by Ms Murphy had been uplinked to a satellite, the NOVA satellite, by a Greek television programme provider called NOVA. NOVA is the licensee for Greece for the football league's material. It provides viewers with a satellite dish, decoder and decoder card. NOVA viewers watching live Premier League games will see a special logo, the "Live S7" logo, on their screen.
NOVA uses conditional access technology (CAT) via satellite, which means that the viewer needs a decoder card to watch the live Premier League games. These cards are authorised by the licence for use in the territory of the licensee.
BSkyB also uses CAT via satellite. It provides decoder cards in return for subscriptions paid by the viewer (whether domestic or non-domestic) and retains ownership of the cards. Without such a card a viewer is not entitled to watch BSkyB Premier League games, and he is not entitled to use the card outside the territory for which BSkyB is licensed.
Both the BSkyB satellite and the NOVA satellite have a "footprint" extending beyond the territorial limit of the licences they enjoy from the Premier League. Any person within a broadcaster's "footprint" who has the appropriate satellite dish, decoder box and decryption card is technically capable of viewing the programmes provided by that broadcaster as part of its broadcasting service.
On 19 th August 2006 and 25 th September 2006, two matches, Bolton Wanderers v. Tottenham Hotspur and Portsmouth v. Bolton Wanderers, were screened on television sets at Ms Murphy's public House, the Red White and Blue at Southsea in Hampshire.
So far as the making of the programmes was concerned, BSkyB had provided the crew, cameras and other equipment at the grounds of both games for the purpose of capturing the visual images and ambient sound from the grounds and its onward transmission to the viewers. The visual images and ambient sound from the grounds were seen at the same time wherever in the world the live Premier League games were being screened. The director chose the visual images to be screened by selecting the visual images captured by specific cameras. The sequence of images accompanied by ambient sound was sent to the BT Tower, from where feeds were sent to BSkyB and to the Premier League at Chiswick. At BSkyB, additional material (including a commentary) and the BSkyB live logo were added in real time to the feed and sent on to the satellite ground station at Chilworth in Hampshire, from where it was uploaded to the Astra satellite from which it was transmitted to BSkyB's subscribers for live Premier League matches. At Chiswick, the Premier League adds an English commentary to the feed, which is then encrypted and sent to NOVA in Greece by a satellite link. NOVA add material to the feed (including an optional Greek commentary and their "Live S7" logo) and from time to time other material such as advertisements. The material assembled in this way is then uplinked to the NOVA satellite with a view to its ultimate reception by subscribers to the NOVA satellite service.
The visual images and ambient sound captured at the grounds are thus identical in the uplinks from BSkyB and from NOVA to their respective satellites, save that the visual images will have the broadcaster's logo added. The additional material (advertisements and the like) is different, as are the respective English commentaries, BSkyB's originating in-house and NOVA's originating with the Premier League.
When the two premiership matches to which we have referred were transmitted and received, Ms Murphy did not have a subscription with BSkyB. She had cancelled that subscription on the grounds of expense on becoming licensee of the Red White and Blue. She did have a satellite dish, a decoder box and a NOVA viewing card that enabled her to receive and view programmes originating with the NOVA satellite. The television pictures of the two matches both carried the "Live S7" logo, confirming that the signals had come via NOVA. In these circumstances, the Crown Court upheld the convictions of Ms Murphy and stated the following questions for the opinion of the High Court:
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 FAPL (i.e. the Premier League) 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. In the event that the feed of live pictures and sounds to NOVA is deemed to be a "programme" and/or a "programme included in a broadcasting service", is the said signal from the BSkyB camera to the FAPL and from the FAPL 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. Does the requisite "intent to avoid any charge applicable to the reception of the programme" within s.297(1) apply to circumstances where the Appellant paid a charge to AV Station (an entity selling NOVA decoders and cards in the United Kingdom) and then receives a programme from NOVA, a foreign broadcaster, but does not pay any other fee to any other broadcaster (in this case BSkyB) as the domestic broadcaster in question?
The Statutory Provisions
Ms Murphy was charged under s.297(1) of the CDPA, which is as follows:
"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 297 was, at the time of Ms Murphy's conviction, found under the heading "Fraudulent reception of transmissions" and accompanied by a series of provisions creating offences relating to unauthorised decoders and providing also for search warrants and forfeiture in relation to unauthorised decoders—ss.297A—297D.
The words "programme" and "broadcasting" are defined as follows in s.299(5):
"In sections 297, 297A and 298, and this section, "programme" and "broadcasting", and related expressions, have the same meaning as in Part I (copyright)."
The CDPA is a complex statute, and, so far as copyright is concerned, deals not only with copyright properly so called, but also with what are called neighbouring and related rights. Broadcasts are copyright works independently of the copyrights in the materials of which they are composed. Copyright in a broadcast is conferred by s.1(1)(b) of the CDPA, and s.6 contains the necessary definitions. It is convenient to set out the whole of the section in its state at the date of the receptions forming the subject matter of the charges:
"6–(1) In this Part a "broadcast" means an electronic transmission of visual images, sounds or other information which—
(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making the transmission to members of the public,
and which is not excepted by sub-section (1A); and references to broadcasting shall be construed accordingly.
(1A) …
(2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.
(3) References in this Part to the person making a broadcast, or a transmission which is a broadcast are—
(a) to the person transmitting...
To continue reading
Request your trial
-
Federation Against Copyright Theft Ltd v Stanley Richard Ashton
...produced a skeleton argument and has addressed us this morning with conspicuous skill and economy. We are indebted to him. He referred to the Murphy cases, including Murphy C-403/08 in the European Court of Justice. In that case the prosecution was laid against the defendant who used a deco......
- Football Association Premier League Ltd v QC Leisure; Karen Murphy v Media Protection Services Ltd (Cases C-403/08 and C-429/08)
-
Football Association Premier League Ltd v QC Leisure (C-403/08 C-429/08)
... ... sub-licensee was (but is no longer) a holding company called Arab Media Corporation (“AMC”). Matches were broadcast on channels produced by ... FAPL and other broadcasters and so undermine the viability of the services they provide ... 9 Consequently the claimants have brought what ... Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (the ... I feel supported by the decision of the Administrative Court in Murphy v Media Protection Services Ltd [2007] EWHC 3091 (Admin) ... This case ... ...
-
Hull and Holderness Magistrates' Court v Alister Charles Darroch and Another Media Protection Services Ltd and Another (Interested Parties)
...these circumstances, and as already indicated, the Applicants now seek their costs below from FAPL. Murphy v MPS [2012] EWHC 529 (Admin) (" Murphy"): the costs ruling 16 It is convenient, before turning to the legislation and submissions before us, to summarise the costs ruling in Murphy w......
-
Divisional Court
...the ECJ had made a decision onJoined Cases C–403/08 and C–429/08 was based on the decision inMurphy vMedia Protection Services Ltd [2007] EWHC 3091 (Admin),[2008] 1 WLR 1869 (hereafter Murphy No. 1) where the AdministrativeCourt interpreted s. 297 as a matter of domestic law. The recorderbe......
-
Is there room for a new ?Bosman'? The latest developments in European Law on cross-border broadcasting of sports
...NOVA and ART operating in Greece and in North Africa. 1Case C-403/08 2Case C-429/08 3Murphy v Media Protection Services Ltd, [2008] EWHC 1666 (Admin). 4Football Association Premier League Ltd v QC Leisure, [2008] EWHC 1411 (Ch). Vol.2 T Vol. 2 Prosecution in both cases took place under sect......