Foreign satellite boxes: Decoding the latest legal position

Foreign satellite boxes: Decoding the latest legal position


Author: Jo Joyce

We have already reported that the way we watch Premier League football could be set for a shake-up, after the European Court of Justice (ECJ) ruled that an effective ban on using foreign decoder boxes was in breach of EU competition law.

However, publicans should pause before rushing out to buy a foreign box.

It seems likely that the Premier League and broadcaster BSkyB, which has exclusive rights to screen certain Premier League matches in the UK, will continue to do whatever it takes to safeguard their positions by relying on their intellectual property rights.

The story so far

Last year, pub landlady Karen Murphy took her argument all the way to Europe after being convicted in Portsmouth Magistrate's Court of breaches of the Copyrights Designs and Patents Act 1988, by 'dishonestly receiving a programme.with the intent of avoiding payment of any charge applicable to the reception of the programme'.

The ECJ found that as Karen Murphy had paid for her decoder box and an accompanying subscription - albeit a foreign decoder and subscription rather than paying Sky - it could not be said that she had broken the law in this respect.

It was also found that using a system of exclusive licences to prohibit supply of decoder equipment outside a particular territory was illegal, as it allowed the possibility of eliminating all competition between broadcasters, and could further partition the market along national lines.

See our earlier article regarding this.

A case of two halves

After the ECJ's ruling on the questions of EU law, the case was sent back to the High Court for final judgment.

The High Court has provided a ruling acquitting Karen Murphy of the offences of which she was originally convicted, but it has also made clear that the judgment has no effect on other issues relating to copyright and intellectual property rights.

The Premier League and Sky are now likely to rely on these to maintain their effective monopoly over broadcasting rights for Premier League matches in the UK.

In another decision, in February 2012, the High Court found that publicans using foreign satellite decoders to screen matches may be able to rely on a legal defence to avoid liability for infringing copyright in some aspects of programming, such as the film, soundtrack and commentary, provided they do not charge an entry fee to view games.

But the defence does not apply to a number of other aspects of match programming, such as graphics, logos and the Premier League anthem.

Screening live matches using foreign satellite decoders whilst avoiding these protected elements is likely to prove virtually impossible if the Premier League follows the obvious course open to it, and includes as many copyright protected elements as possible in match broadcasts.

So what does this mean?

Although the makers of decoder boxes are likely to use their ingenuity to circumvent the copyright protected aspects of Premier League match broadcasts, the Premier League will also be investing serious time and effort in making this as difficult as possible.

Time will tell as to whether the Premier League can maintain its monopoly in the face of the recent court decisions, but publicans are advised to wait before cancelling their Sky subscriptions, as it may be some time before a legal alternative is available, if indeed it ever is.