Coulson: Last throws of the satellite TV dice

One of the last acts of the eminent Judge Nicholas Pumfrey before his untimely death was to give as clear a judgment as one could wish on the question of satellite football transmissions.

Whatever may be said about monopolies and competition law, the copyright position seems now to be finally settled after the delivery of the binding Administrative Court decision on 21 December.

Lord Justice Pumfrey examined carefully the submissions concerning the European dimension and came to the inevitable conclusion that European law actually requires individual member states to "provide appropriate legal protection against the placing on the market, for direct or indirect financial gain, of an illicit device which (avoids) the remuneration of a legally-provided service."​

That is, of course, exactly what the satellite systems do. Because Sky has the monopoly in the UK, it sells its protected service by means of a viewing card at what the trade considers to be a high price, but because it has acquired the rights at a very high cost from the Premier League.

Astra, for example, has acquired the rights for Greece, but not for the UK.

Pumfrey put it plainly towards the end of his judgment in the case of Karen Murphy.

Broadcast from UK​

Having decided that the "programme"​ which Mrs Murphy broadcast clearly emanated from the UK, he said that if the defendant knew that the broadcaster (Sky) had the exclusive right in this country and makes a charge for reception of its broadcasts, then if she made arrangements to receive the broadcast without paying the fee, there was an intent to avoid the charge.

The fact that she paid a fee to someone she knew did not have the right to broadcast in this country did not affect the issue.

There is no doubt that the success of the satellite suppliers has been in providing something that is a great deal cheaper than the legitimate Sky service.

Every pub that takes on a foreign card is doing it because they want to show football, but do not want to pay the Sky charges.

What may be open to doubt, fuelled by the statements of the suppliers and their lawyers, is whether those who buy the cheaper installations actually know that the fee they are paying for it is not legitimate.

Mrs Murphy clearly did, because she had been told so by a judge in court. Those who are reading this newspaper and the MA website also know.

Turning Nelson's eye to the pronouncements of a High Court judge may suit the satellite suppliers, but then they are in it entirely for the money - as are Sky.

Timely delay​

The longer any dispute goes on, the more foreign satellite systems and cards can be sold which are clearly in contravention of Sky's legal monopoly of Premiership football rights.

Going off to Europe with a delegation is another smokescreen. The only grounds for a protest is the monopoly and the competition law element.

I note that the judge gave the appellant leave to argue this in a second hearing, but the way he did so leaves me in no doubt that he does not think it is relevant to the copyright position.

Arguing about monopolies and exploitation is an entirely different matter from upholding copyright law, which exists to protect creators and authors from being ripped off.

Sky creates these programmes and has paid for the right to show them in the UK. You may not like the way they go about their business, but they are acting within the law. And if you do go out and buy a foreign satellite system, you risk prosecution from now on. Be warned.