Foreign satellite footy: should it be legal?
'Yes' by Paul Dixon
According to the FA Premier League's (FAPL's) own accounts, its principal activity is to manage the Premier League competition and "to exploit broadcasting and other commercial rights …" on behalf of Premiership clubs.
The FAPL sells the rights to make live broadcasts of its matches to broadcasters such as Sky, Setanta, Nova, Canal + etc on a territorial basis. In order to maximise the value of the territorial rights, the FAPL imposes restrictions on the broadcasters requiring them to take steps to prevent their broadcasts being received outside their designated territory (eg UK for Sky and Setanta, Greece for Nova etc). An income of almost £1bn in 2007/08 is a testament to the FAPL's succcess.
The FAPL has engaged in a widely publicised campaign of criminal prosecutions of licensees who have used imported legitimate foreign satellite cards to receive live broadcasts of FAPL matches, many because they simply cannot afford Sky's commercial charges.
I first became involved when a longstanding client of mine, Brian Gannon, came to see me clutching a summons which he had received from the Federation Against Copyright Theft, on behalf of the FAPL.
We defended the case. While Brian was initially convicted by Rochdale Magistrates Court, he was subsequently acquitted on appeal by HHJ Warnock at Bolton Crown Court. Brian's case attracted enormous publicity, as a result of which Karen Murphy asked me to defend her when she received a criminal summons from Media Protection Services on behalf of the FAPL.
In simple terms, the FAPL criminal prosecutions (and their injunction proceedings against importers such as AV Station and QC Leisure) are based on restrictions in the licence agreements with the satellite broadcasters forbidding the export of decoder cards from one EU member state to another.
In our opinion, such export bans are illegal because they contravene EU rules about free movement of goods and services and free competition throughout the EU.
The FAPL is not the only programme content provider that imposes territorial restrictions on broadcasters. We anticipate that the decision of the European Court of Justice (ECJ) in the cases against Karen Murphy and the importers will have far-reaching implications for the way in which all sports broadcast rights are licensed, as well as for other television content providers such as international film producers and distributors.
It was therefore no surprise that UEFA, Sky, Setanta, Canal + and the Motion Picture Association all applied to join in the civil case against the suppliers so that they can make their own submissions to the ECJ.
Karen Murphy exemplifies the great British host. She runs a pub because she enjoys it. She is welcoming, outgoing, hardworking and, dare I say, just a little bit feisty. It is easy to see why observers of her struggle have taken her to their hearts.
It is now up to the European Court to determine Karen's fate, and in so doing decide between the interests of millions of EU citizens and the developing European audiovisual trade on the one hand, and the attempts by FAPL and others to shore up an antiquated and damaging system of territorial restrictions on the reception of satellite broadcasts on the other.
Paul Dixon is head of licensing and regulatory affairs at Rochdale-based solicitors Molesworths Bright Clegg. He represents licensee Karen Murphy and supplier AV Station
'No' by Dan Johnson
The Barclays Premier League has never been more exciting, popular or readily available. There has been an increase in both the number of matches available and the different platforms they can be viewed on - internet and mobile phone joining TV.
However, one option not available is using foreign satellite equipment in pubs and clubs to broadcast Barclays Premier League football in the UK. It is copyright theft, it is illegal, and could cost you your licence.
The Premier League takes this issue seriously - as it is the basis of investment in English football from the grassroots upwards. Since 2002 there have been hundreds of successful prosecutions, with many more in the pipeline. The only legal way to watch live Premier League football in the UK is on Sky or Setanta and venues must have the appropriate commercial agreement.
No doubt you will have heard of the Gannon, Murphy and QC Leisure cases that have been bandied about as somehow changing the law. This is simply not true.
In the case of Gannon, he was only acquitted on the basis that the court was not satisfied beyond reasonable doubt that he was acting dishonestly. This had no bearing on copyright law and the district judge went as far as to publicly state that his verdict did not make the use of foreign satellite TV legal.
The Murphy case was a criminal appeal to the High Court last December, after she had been found guilty of a criminal offence and fined heavily. Murphy was unsuccessful in having her appeal overturned and remains a convicted criminal. It is true that certain limited European elements of the case were referred to the European Court of Justice (ECJ), but, again, this has not changed the law regarding foreign satellite TV systems. Media Protection Services' (MPS) enforcement work will continue and prosecutions will be pursued as and when appropriate.
The civil proceedings taken against QC Leisure and a number of suppliers and publicans reached the High Court in April this year. This has also been referred to the ECJ, again to consider elements of European law as some of the legal arguments put forward by QC Leisure related to the cross-border movement of goods and services.
Again, this referral does not make the supply of foreign satellite equipment legal and we are confident that the ECJ will uphold the principles of copyright protection.
Honest publicans are being let down, and cheated out of business, by those who choose to break the law. Adverts encouraging publicans to subscribe to foreign satellite TV urge publicans to 'make sure you have substantial legal insurance protection'. Suppliers will not be able to provide their 'customers' with a contract between them and the foreign broadcaster in the same way that you would get one with Sky. This is because they are not legally entitled to offer that service in the UK.
The cards are for use in foreign territories and have been obtained in some cases via deceptive means. Licensees signing up to these contracts run the very real risk of losing money and getting prosecuted.
We know licensees want to abide by the law as well as play fair with each other - if you know of anyone using a foreign satellite system to screen Barclays Premier League games, or you are unsure of a supplier's claims, please call MPS on 0845 290 3444 in confidence for advice.
Dan Johnson is chief spokesman for the Premier League
