Federation Against Copyright Theft Ltd v Ashton

Section 297(1) of the Copyright, Designs and Patents Act 1988 is concerned with the charge properly applicable to reception of a programme in the circumstances in which it is received. The relevant charge is not limited to the amount paid to the provider actually used. A domestic subscription cannot necessarily satisfy the charge applicable to reception of the same programme in commercial premises, where a higher commercial charge is properly applicable. Payment to one provider is not evidence of payment to another provider. The provision may protect intellectual property rights through its penal operation, provided its language is interpreted without undue strain.

The Federation Against Copyright Theft Limited appealed by way of case stated against the acquittal of Stanley Richard Ashton by the South and West Devon Justices sitting at Plymouth. Mr Ashton operated licensed premises and displayed BSkyB sports broadcasts using a domestic Virgin Media subscription, despite lacking a non-domestic BSkyB contract.

The magistrates concluded that payment under the Virgin Media contract amounted to payment to BSkyB and acquitted him. The appeal concerned the proper construction of section 297(1) of the Copyright, Designs and Patents Act 1988, whether the domestic payment satisfied the applicable charge for commercial reception, and whether there was evidence supporting the magistrates’ conclusion.

1. The appeal was allowed, the acquittal was quashed, and the matter was remitted to the Justices to rule on whether dishonesty was proved.

2. Section 297(1) applies where a person dishonestly receives a programme with intent to avoid payment of any charge applicable to the reception of the programme. That phrase must be read as a whole. It refers to whatever charge is properly applicable to reception in the circumstances in question.

3. The provision is therefore not confined to the charge made by the broadcasting service actually used. The magistrates’ approach would allow a charge applicable in materially different circumstances to determine criminal liability. In this case, the relevant question was whether the commercial charge applicable to reception at licensed premises had been avoided.

4. The Murphy cases did not determine whether section 297(1) applies where a programme may be received through two providers and use of one provider infringes the other’s rights. They consequently did not assist on the issue before the court.

5. The court rejected the significance attributed by District Judge Sanders in FACT v Gabriel to the word “any”. The fact that payment had been made for a domestic service did not establish payment of the commercial charge applicable to the reception in a public house.

6. The magistrates also erred in treating payment to Virgin Media as payment to BSkyB. The only relevant payment made by the respondent was to Virgin Media, and that did not constitute evidence of payment by him to BSkyB.

7. Section 297(1), although penal, protects intellectual property rights. Interpreting it as applying to the properly applicable charge was justified and did not impermissibly enlarge the statutory language.

8. Costs were ordered out of central funds, subject to assessment. The respondent’s publicly funded costs were also directed to detailed assessment.

• High Court (Administrative Court) — The appeal by way of case stated was allowed. The acquittal by the South and West Devon Justices sitting at Plymouth was quashed, and the matter was remitted for a ruling on dishonesty.