England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
ON APPEAL BY WAY OF CASE STATED
FROM PORTSMOUTH CROWN COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 February 2012

MR JUSTICE STANLEY BURNTON:

1. The appellant was convicted by Portsmouth Magistrates of two offences under Section 297(1) of the Copyright Design and Patents Act 1988. Those convictions were to the effect that on 19 August 2006 and on 25 September 2006, she:

"Dishonestly received a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme."

2. The essential facts may be taken from the judgment of this court, differently constituted, the neutral citation of which is [2007] EWHC 3091 (Admin). The Premier League owns the intellectual property rights in relation to the screening of live Premier League football matches. It grants exclusive licences to licensees to screen live Premier League matches in the licensees' respective territories. In the United Kingdom and Ireland, at all relevant times, the sole licensee was BSkyB. In Greece, the licensee is a Greek television programme provider called NOVA. Programmes received by the appellant had been up-linked to the NOVA satellite by NOVA. NOVA provides viewers with a satellite dish, decoder and decoder card. Both BSkyB and Nova use conditional access technology via satellite, which means that the viewer needs a decoder card to watch the live Premier League games. These cards are authorised by the licensee -- in this case BSkyB or NOVA -- for use in the territory of licensee. Thus BSkyB, by its contracts with subscribers, restricts the use of its decoder cards to this country, while NOVA restricts the use of its cards to Greece.
3. The appellant's convictions relate to her showing to her customers in her public house, the Red White and Blue in Southsea in Hampshire, two Premier League matches. When these matches were transmitted and received, Ms Murphy did not have a subscription with BSkyB. She had cancelled that subscription on the grounds of expense on becoming the licensee of the Red White and Blue. She did have a satellite dish, a decoder box and a NOVA viewing card that enabled her to receive and view programmes originating from the NOVA satellite, the footprint of which extended to United Kingdom. She had purchased that card but was using it in contravention of the geographical limitation, to which we have referred.
4. The appellant's appeal against her convictions was dismissed by the Crown Court sitting at Portsmouth, but it stated a case for the opinion of the High Court and a number of legal questions raised by her defence. For present purposes it is sufficient to refer to the fifth question on which the opinion of the High Court was sought:

"Does the requisite 'intent to avoid any charge applicable to the reception of the programme' within Section 297(1) apply to circumstances where the appellant paid a charge to AV Station, an entity selling NOVA decoders and cards in the United Kingdom, and then receives a programme from NOVA, a foreign broadcaster, but does not pay any other fee to any broadcaster -- in this case BSkyB -- as the domestic broadcaster in question?"

5. The questions of domestic law raised in the case stated were answered by the Court, insofar as they were relevant, adversely to the appellant, on 21 December 2007 in its judgment to which I have referred. The judgment did not address any questions of European Union law and left those to be considered separately, if the appellant so wished. The appellant did pursue the European law issues she had raised.
6. As a result, on 16 July 2008, this court, for reasons set out in a further judgment, neutral citation [2008] EWHC 1666 (Admin), decided to refer to the Court of Justice a number of questions of European law. A similar reference was made by Mr Justice Kitchin, as he then was, in proceedings heard by him in the Chancery Division. This court recorded at paragraph 9 of the above judgment that:

"It was ultimately common ground between the parties that for the purposes of this appeal the court should proceed on the basis that the decoder card used by the appellant to receive the NOVA broadcast in question was not a pirate card in the sense of being a card which was manufactured and marketed without the authorisation of the NOVA card issuer. In other words, this was a genuine NOVA card, albeit that it was, according to the respondent, being used outside the area for which it was authorised, that is outside Greece. It seems to us that it is implicit in the case stated ..."

7. The reference is given:

"Moreover, it does not appear that any contrary suggestion was made by the prosection either below or during the hearing of the first part of this appeal."

8. The referred questions were answered by the Court of Justice in its judgment of 4 October 2011 in conjoined cases C403 of 2008 and C429 of 2008. For present purposes, the most important of the court's answers to the referred questions are as follows:

"1. Illicit device within the meaning of Article 2E of Directive 98/84/EC of the European Parliament, and of the Council of 20 November 1998 on the legal protection of services based on or consisting of conditional access must be interpreted as not covering foreign decoding devices, devices which give access to the satellite broadcasting services of a broadcaster, or manufactured and marketed with that broadcaster's authorisation, but are used in disregard of its will outside the geographical area for which they have been issued.

"2. Foreign decoding devices procured or enabled by the provision of a false name and address, or foreign decoding devices which have been used in breach of a contractual limitation permitting their use only for private purposes.

"3. On a proper construction of Article 56 TFEU, that article precludes legislation of a member state which makes it unlawful to import into and sell and use in that state foreign decoding devices which give access to an encrypted satellite broadcasting service from another member state that includes subject matter protected by the legislation of that first state. This conclusion is affected neither by the fact that the foreign decoding device has been procured or enabled by the giving of a false identity and a false address with the intention of circumventing the territorial restriction in question, nor by the fact that it is used for commercial purposes although it was restricted to private use.

"4. The clauses of an exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster constitute a restriction on competition prohibited by Article 101 of the Treaty where they oblige the broadcaster not to supply decoding devices enabling access to that right holder's protected subject matter with a view to their use outside the territory covered by that license agreement."

9. It follows that:

1. The appellant's NOVA viewing cards were not illicit devices within the meaning of article 2E of Directive 98/84/EC. Had they been such devices, they would have fallen within the scope of that Directive and different considerations would come into play.

2. By virtue of Article 56 of the Treaty, which is directly effective as a matter of EU law, Section 297(1), under which the appellant was convicted, cannot be applied to the appellant's use of the cards in question.

3. The territorial restrictions imposed on the use of the appellant's NOVA viewing cards were unlawful under EU law.

10. The appellant had paid for her card, she had not avoided any charge applicable to its use and had not acted dishonestly. As is conceded by the respondent, it follows that the appellant was wrongly convicted, her appeal will be allowed and the convictions quashed.
11. We make it clear that nothing in this judgment affects any statutory provision insofar as it relates to counterfeit or stolen viewing cards, or illicit devices within the meaning of Directive 98/84.
12. The use of cards or devices originating from outside the European Union also gives rise to different considerations in the issues in this appeal. We have not heard argument on the use of such cards or devices and say nothing more about them. We refer in this regard to the comments we made at paragraphs 63 to 65 of our judgment at [2008] EWHC 1666 (Admin).
13. Similarly, the present judgment has no bearing on issues relating to infringement of copyright or other intellectual property rights such as those with which Lord Justice Kitchin dealt with in Football Association Premier League Limited and Others v QC Leisure and Others [2012] EWHC 108 (Ch).
14. Lastly, it has not been necessary for us to consider what if any effect the decision of the Court of Justice in these joint cases has on this court's original finding in relation to the place of broadcast for the purposes of Section 297(1).
15. As indicated, there will be a separate judgment on costs.