As reported by The Morning Advertiser, the recent case of the Clachan Bar in Whitburn, West Lothian, was the first instance in which a breach of interdict and associated contempt of court emanating from the unlawful showing of Sky broadcasts have resulted in a custodial sentence.
Moreover, the combined fine of £327,405 for three pubs in the Midlands for showing Sky Sports illegally, reported by The Morning Advertiser, shows how severely illegitimate sports broadcasting is being dealt with.
Alex Haffner, partner at Fladgate, highlights this as an ongoing area of dispute that rights holders and the Federation Against Copyright Theft (FACT) have “really ramped up on” in the years since the case of publican Karen Murphy.
“All this stems from a legal case that was all about landlady Karen Murphy who legitimately bought some foreign decoding equipment – box and card, etc – and showed Premier League matches via a Greek channel.
“She got prosecuted and took it all the way through the courts, and famously won because it was said that it was against EU free movement rules that once something’s been put on the market in Europe, you should be able to freely move it around the market. That was the genesis of all this ongoing noise around pubs.
“Although that was a temporary victory for publicans, all that’s happened since is that the rights holders have strengthened the way in which they operate.
“The position is fairly straightforward now – you need to have a commercial licence and you have to have a legitimate licence from the broadcaster.”
Danger of being caught out
Haffner added: “Obviously because it’s quite a high cost a lot of publicans are, understandably, trying to find ways of reducing that cost by going to other sources” says Haffner. “The problem is those sources aren’t always legitimate.
“You’ve got two strands to this – one is people who clearly know they’re doing wrong and frankly try and flout on the basis they won’t get caught, and then people who are a bit more innocent and buy through sources they believe to be legitimate but ultimately are not.
“People need to be careful, to make sure that the source is legitimate and that they do pick up the correct subscriptions.
“There are some criminal cases where people have created systems, wilfully, to try and circumvent the regime – but that’s the really bad end of things.”
Haffner refers to a case in which two men ran an illegal sports broadcasting service, scamming more than 270 pubs in the north-east out of around £1.5m, offering 18 channels illegally at less than £200 per month, as an example of the scams that exist.
“Obviously, the publicans don’t want to get unwittingly caught up. It’s pretty clear cut – they’re basically creating illegal streams where people pay vastly reduced rates.”
Detecting illegitimate sources
“It’s really all around copyright,” says Haffner. “There’s copyright in the broadcasts that has been upheld in various court decisions. Ultimately, there’s not really much room for manoeuvre to say that you’re not breaching the copyright even if it’s a foreign broadcast.
“Frankly, the best way is obviously to do it directly – through the broadcaster.
“If a publican is going through some sort of intermediary they need to check that the intermediary has a direct relationship with the broadcaster. Ultimately, a lot of these people don’t and are probably relying on other sources, which are not lawful or official sources.
“They need to check the source of the broadcasts and ask for confirmation from the person they’re getting the equipment from that they have the correct licences in place.
“They should ask what licences are in place vis-à-vis specific equipment. There has to be a commercial licence in place – it can’t be a domestic one that’s been upheld on various occasions. They need to make sure it fulfils obligations under a commercial licence – that’s the first port of call I would suggest.
“If they want to get absolute comfort, they should engage with FACT because they’re the arbiters. Engaging with them will actually help because if they bless what you do, frankly you’re covered from all angles.”
For more information on permissions, check out the second question in this legal Q&A with specialist licensing solicitors Poppleston Allen https://www.morningadvertiser.co.uk/Article/2018/08/13/Legal-Q-A-off-sale-rules-and-Sky-Sports-permissions