Decoding issues in televised sport in pubs

Today the European Court of Justice will meet to consider the "Murphy" case and other referrals from the English High Court concerning the use of foreign satellite equipment and decoders in pubs and clubs.

The justice system in Europe is in some respects different from our own and involves a prior investigation and the seeking of views from relevant bodies and organisations by an investigating judge. He reaches no conclusions but presents a report and digest of the issues for the benefit of the tribunal.

Not surprisingly, the majority of the opinions expressed are that European law, and in particular the Conditional Access Directive, which allows suppliers to impose restrictions (ie by national territory) on the use of their programmes or "feeds", will act to prohibit another supplier from providing equipment deliberately to evade the restriction.

They also suggest that the equipment provided therefore becomes an "illicit device" for the purposes of European law, even though its use in, say, Greece, for the reception of programmes is perfectly legal.

The British and French Governments, who were consulted on the issue, support the view of the Premier League and its agents; the European Parliament and the Council of the European Union consider that the case raises no issues of the validity of the Conditional Access Directive and so implicitly support the use of copyright restrictions in the way the Premier League distributes its licences in the Community.

However, the report is not all one way: the European Commission itself does not think the decoders can be considered "illicit devices" and therefore the Conditional Access Directive does not apply to them.

It also thinks that the law in the Copyright, Designs and Patents Act, which makes these devices illegal, is contrary to European law and that exclusive broadcasting rights restrict or distort competition within the EU. This view is supported by an organisation called the EFTA Surveillance Authority, which represents the interests of three countries outside the EU.

So there are several issues here that still need to be determined by the European Court, and the result is by no means cut and dried. In particular, it is the very essence of copyright being examined, in the light of the special requirements for free movement of goods and services and the breaking down of national boundaries within Europe. And you thought it was just about pub TVs!

Q&A​

Betting on dominoes​

Q.​ We recently took over a pub that is in a community where customers have traditionally played dominoes. We continue to supply the sets, which the previous licensee did, and it attracts custom. As far as the rules go, I am unsure how it operates, and certainly they do put money down, which my predecessor said was legal. There is money changing hands among spectators, which may be to do with the games. What shall I do?

A.​ These days, nothing to do with gaming in pubs should be left entirely to the customers. You have a personal responsibility to ensure any gaming on your premises complies with the new laws, now the Gambling Act 2005 is in full force.

Although you do not need any licence or permit for dominoes (and cribbage) to be played for money, under the old law this used to be permitted only for small stakes, not wads of notes! However, there is currently no specific limit for dominoes, as there is with poker, for example, but the Gambling Commission Code of Practice, which applies to you, does warn about high-stake gaming in pubs.

Certainly the matter of side bets is a cause for concern. The players are allowed a wager on the games, but non-participants should not be involved, as this is clearly unlawful betting, for which you are not licensed, and this could result in a caution or even a prosecution.

Different game​

Q.​ There has been a campaign in this city recently about prostitution and I have been advised that our licence could be at risk if we allow prostitutes to use our pub. Is this right? What would happen if one of my staff serves a woman and she turns out to be "on the game"? Am I liable?

A.​ The offence of allowing known prostitutes to remain on licensed premises was not carried forward into the Licensing Act 2003 and therefore from the second appointed day it ceased to be an offence.

There are some who mistakenly hold that all the old offences were carried forward on conversion. But I have yet to see a converted licence carrying it as a condition, because it is not directly linked to the sale of alcohol.

So police could not take direct action. However, a licence could be called in for review if it was alleged the premises was being used for soliciting or other unsavoury activities on which the licensing authority received representations. But there would have to be a complaint for this to be done, because there would not be an offence as such that would carry the risk of prosecution. If one of your staff inadvertently served a prostitute there could be no action taken.

Fee in advance​

Q.​ We have received a demand from the council for the annual fee for the licence of this pub, which we moved into last April. It's addressed to "the premises licence holder", not me, although I am named as the designated premises supervisor (DPS). As I understand it, the brewery holds the licence. Who is responsible for paying the fee, and when?

A.​ Responsibility rests with the holder of the premises licence, not the DPS or anyone else. Some breweries and operating companies have decided they wish to hold the licence in the company name, so will be directly responsible, although contractually they may seek to make the premises operator or lessee responsible financially.

However, in terms of the payment of the licence, it should be on the anniversary of the date of grant, not the date you took over. Some authorities send the demand early and some have standardised the day of the year, although this is not recognised in law. This notice should be passed on to the brewery for payment.