It all started with Karen Murphy, who was prosecuted for not using the services of Sky Sports, which had an exclusive licence to provide televised coverage of Premier League matches.
Her conviction was appealed and ended up in the European Court where it was decided that national laws prohibiting the import and sale or use of a decoder box with a subscription were in conflict with EU community laws allowing member countries the freedom to provide services within the community.
At the same time there was some comfort for Sky Sports (which at the time was the sole provider of Premier League matches) when the court indicated that aspects such as the opening sequence and graphics were copyright protected and could not be shown without the owner’s consent/permission.
There then followed the debacle with Media Protection Services — the Premier League Ltd’s ‘enforcer’ — which commenced prosecutions in the Magistrates’ Courts against those who continued to use foreign satellite transmissions to show the matches.
Andrew and Christine Crawford were prosecuted for using an Albanian transmitter and, in a test case that found its way into the High Court, the defence successfully argued that the prosecutor (the director of Media Protection Services) was not a qualified person (such as a solicitor) and therefore was not entitled to bring the prosecution at all. Further, the defence argued that the Premier League Ltd is a Scottish organisation, which had nothing to do with the Football Association Premier League (FAPL).
Unsurprisingly, the prosecution was thrown out and everything ground to a halt. Or did it?
In early 2014 the FAPL confirmed its intention to commence prosecutions of those who continued to screen Premier League matches without subscriptions from Sky Sports or BT Sport.
The operator of the Rhyddings Hotel in Swansea put forward a defence based upon the argument that Murphy used in the European Court — that the provision of services in Europe could not be denied to operators in the UK. Counsel for the Premier League argued that the defence “had no realistic prospect of success” in respect of the copyright infringement issues. The judge agreed and ordered the defendant to pay £65,000 in legal costs pending a final assessment of what was actually owed.
The judge added that “only Sky Sports and BT Sport are authorised to show Premier League football in pubs in the UK and legitimate commercial subscriptions for use in pubs can be obtained from them”. The High Court subsequently confirmed the costs award was appropriate and must be paid within 28 days. And that was just an interim costs award.
In light of the above anyone using a foreign supplier is probably thinking of ditching it to avoid the prosecution and costs risks. There is, however, a further sting in the tail, as solicitors acting for the FAPL have sent out documents called ‘undertakings’ to premises that have used foreign satellite providers.
The undertaking paraphrased is as follows: in consideration of not commencing proceedings against the premises operator, the operator is requested to undertake that they will not (without the licence of the Premier League) communicate and/or otherwise authorise the communication to the public of electronic transmissions of the whole or substantial part of any of the copyrighted works of the Premier League.
The operator is also requested to provide full details of the equipment that is being used including (if a card has been used) the identity number, the business that sold or supplied the equipment and any information regarding the distribution chain of the equipment.
The undertaking also requires the operator to provide details of the price of the equipment and communications, emails and documentation relating to its supply.
Here is the sting, not only does the undertaking require that details of matches screened this year be provided, but also that a payment is made: “A suitable figure in respect of damages for past infringements to be assessed by the court in the event of a disagreement.” There is also a requirement to pay a “suitable figure” in respect of the solicitor’s costs, again to be assessed by the court in the event of a disagreement.
Finally, the document requires that the operator will provide a witness statement, if necessary, verifying the information provided.
I can sum up this long (ongoing) saga in a phrase: copyright infringement can be an expensive business.