Thursday 23 January 2014

Newsflash - Murphy's law to be tested again

Will Swansea pubs face a penalty?
It seems like the Premier League is launching at least 100 new actions against publicans who use foreign decoder cards to show live Premier League football matches in their pubs. BBC Wales reported that pubs in Cardiff and Swansea, suspected of showing Premier League football matches illegally using foreign satellites, face prosecution after the Premier League's private investigation firm visited nearly 200 pubs in south Wales in the last four months and the BBC say the first action for copyright infringement will be against The Rhyddings Hotel in Brynmill, Swansea, shortly. The pubs have subscriptions with foreign channels and show 15:00 GMT Saturday Premier League kick-offs live to their customers. 

Dan Johnson, the Premier League's director of communications, told the BBC: "BT Sport and Sky Sports invest huge amounts of money in the Premier League and that then is in turn invested by the clubs in new stadia, developing players, acquiring players, the whole range of things that make Premier League football so popular" adding "So anything that damages the ability of broadcasters to invest in that has the potential to damage the ability of the clubs to invest in that" and "With the advent of Cardiff and Swansea being in the Premier League clearly the interest in Premier League football has gone through the roof in south Wales.".

Previous efforts to bring pubs to court resulted in a partial victory for Portsmouth pub landlady Karen Murphy who used a subscription to the Greek Nova service to show live Premiership games. Ms Murphy was convicted at Portsmouth Magistrates Court of "dishonestly" receiving a programme "with intent to avoid payment of any charge applicable to the reception of the programme". The conviction under section 297(1) of the Copyright, Design and Patents Act 1988 was upheld by Portsmouth Crown Court. The Court of Justice of the European Union held that national laws that prohibit the import, sale or use of foreign decoder cards were contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums - and also that football matches did not fall under the protection of an author's own "intellectual creation" as works. So Ms Murphy herself could use the Greek service and her criminal conviction was overturned by the High Court.

But neither CJEU nor the High Court directly resolved the wider issue of copyright infringement in those elements of the matches that could be protected by the Premier League - logos and graphics, the the league's anthem and pre-recorded and edited short films from earlier matches used in live broadcasts - and the CJEU noted that when these were shown in public - and the transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive - the the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works. 

More on Murphy v MPS here and  joined cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd 

North of the border - a Scottish perspective here

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