Murphy v Media Protection Services Ltd

For the purposes of s.297(1) of the Copyright, Designs and Patents Act 1988, the relevant programme is identified by its substantive visual and audio content. Later additions, such as commentaries or logos, do not necessarily create a different programme.

Section 299(5) imports the statutory meaning of “programme” and “broadcasting” into s.297(1), but does not import the location rule in s.6(4). The place from which the broadcasting service is provided is the place where the initial transmission of the programme for ultimate public reception occurs. Intent to avoid a charge is established where the defendant knows that the UK broadcaster has the exclusive right and charges for reception, and arranges reception without paying that charge.

Karen Murphy appealed by way of case stated against the dismissal by Portsmouth Crown Court of her appeal against convictions by Portsmouth magistrates. She had received live Premier League matches at her public house using a Greek NOVA decoder and viewing card, without subscribing to BSkyB, the exclusive UK licensee.

The Crown Court referred five questions concerning the territorial scope of s.297(1) of the Copyright, Designs and Patents Act 1988, the identity of the broadcasters and broadcasting service, the status of the live feed, the relevance of the uninterrupted-chain provision in s.6(4), and the necessary intent to avoid a charge.

1. Appeal. Subject to any further argument on the unargued EC law points, the appeal was dismissed.
2. Construction of s.297(1). Section 299(5) imports into s.297(1) the definitions of “programme” and “broadcasting” in s.6, probably including s.6(1A). It does not import s.6(4), which defines the place from which a wireless broadcast is made for copyright purposes. The satellite-copyright authorities were therefore not applicable to the issue under s.297(1).
3. Programme and broadcasting service. A programme is any item included in an electronic transmission of visual images, sounds or other information. A broadcasting service is a succession of such transmissions, each of which must be capable of lawful reception by members of the public. The relevant programme was the visual images and ambient sound of the matches transmitted from the United Kingdom. The later addition of English and Greek commentary and a Greek logo did not alter its identity.
4. Location and responsibility. The relevant place was the point at which the initial transmission of the programme for ultimate public reception occurred. That place was in the United Kingdom. FAPL and BSkyB were each broadcasters for this purpose because they had editorial responsibility for the composition of the relevant television programme schedule.
5. Uninterrupted chain. It was unnecessary to determine whether the various signals formed an uninterrupted chain under s.6(4). The statutory definition was unaffected by the manner of transmission between origin and public, provided the identity of the programme was not changed.
6. Intent. The necessary intent was established where the defendant knew that the UK broadcaster had the exclusive right to broadcast in the United Kingdom and charged for reception, and arranged to receive the broadcasts without paying that charge. Payment to a foreign broadcaster lacking the UK broadcasting right was not inconsistent with that intent. The facts stated established the requisite intent and the convictions were upheld.

• Portsmouth Crown Court: dismissed the appellant’s appeal against convictions by Portsmouth magistrates.
• High Court (Administrative Court): on appeal by way of case stated, answered the questions substantially against the appellant and stated that, subject to possible argument on EC law points, the appeal would be dismissed.