Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 39
A496/13	OPINION OF LORD GLENNIE in the cause (FIRST) BRITISH SKY BROADCASTING GROUP PLC and (SECOND) BRITISH SKY BROADCASTING LIMITED Pursuers; against (FIRST) AVALONBAR LIMITED and (SECOND) SARAH McINTOSH Defenders: ________________

Pursuers and Minuters: Lake QC; Burness Paull LLP

Defenders and Respondents: McIlvride; TLT Scotland Ltd

27 February 2014

Introduction

[1] In this intellectual property action the pursuers complain that the defenders have infringed their copyright in certain artistic works by showing, at the Avalon Bar, 25 Kent Road, Glasgow, live broadcasts of football matches transmitted by them without having the necessary permission so to do.

[2] The pursuers instructed an investigator to go to the Avalon Bar on 3 August 2013. On the basis of his report, which was to the effect that one of the pursuers' live broadcasts was being shown within the bar area, the pursuers commenced this action for infringement. On an application made ex parte on 6 September 2013, they obtained interim interdict to prevent infringement in the future. That interdict was served at about 6 p.m. that day. Later that same evening investigators went back to the Avalon Bar. They reported that a live broadcast of a football match provided by the pursuers was being shown within the bar area. On the basis of that further information, the pursuers have by Minute in the original action brought proceedings for contempt of court.

[3] Since the pursuers' case both in the original action and in the contempt proceedings depends in large part on the question whether the pursuers' live broadcasts of football matches were shown in the Avalon Bar on those two occasions, parties were in agreement that it was convenient to combine the proof in the original action with the hearing on the Minute for contempt of court.

The pursuers and the Works

[4] The second pursuers ("Sky") are a leading provider of pay television services in the United Kingdom. They provide their services by means of satellite broadcasts. To receive such broadcasts it is necessary to have a decoder box and a viewing card of the type made available by them to subscribers. The terminology used by the different witnesses was not entirely consistent - the decoder box was sometimes referred to as a satellite reception box or satellite set-top-box ("STB") - but in this Opinion I shall refer to them as a "decoder box" and a "viewing card". The viewing cards themselves are owned by an associate company of the pursuers.

[5] Sky offer two different subscriber packages, with different terms applicable to each. The domestic package permits only private viewing, and excludes commercial or business use or the showing of broadcasts in public to an audience. The non-domestic or commercial package is not subject to those restrictions. The charges for the commercial package are higher than those for the domestic package.

[6] Amongst the pay television services offered by Sky are live broadcasts of football matches. Graphics, logos and match information are shown on the screen during the live broadcasts. They include the following (using the numbering from the listing in the Appendix to the Summons):

(1) the "SKY SPORTS" logo, showing the words "SKY SPORTS" in white lettering against a background of distinctive blue and red rectangular boxes;

(2) the "SKY SPORTS 1" logo, showing the words and number in white against a background of distinctive blue and red rectangular boxes - there is a similar logo for "SKY SPORTS 2" and "SKY SPORTS 3", the only difference in each case being the number. The example shown in the Appendix is of "SKY SPORTS 1";

(3) the "SKY SPORTS 1 LIVE" logo, showing the words "SKY", "LIVE" and the number in white against a distinctive pale blue/ grey rectangular box and the word "SPORTS", in blue/ grey lettering against a white rectangular box - there is a similar logo for "SKY SPORTS 2 LIVE" and "SKY SPORTS 3 LIVE", the only difference in each case being the number. The example shown in the Appendix is of "SKY SPORTS 1 LIVE";

(9) the "NEXT" logo showing, in a distinctive mid blue and white box format, what is going to happen next, such as half time or full time discussion or analysis of the game. The example shown in the Appendix says, in white lettering in the blue box, "NEXT: FULL TIME ANALYSIS WITH NEIL McCANN" and underneath that, in black lettering and numbering in the white box, "CELTIC 2-1 ROSS COUNTY";

(10) the "Round logo" showing, in white lettering against a dark blue background, what matches are coming up next. The example shown in the Appendix says "Hibernian v Motherwell 1 PM". This is followed in the same dark blue box by the "SKY SPORTS 1" logo described above, but it might on other occasions be "SKY SPORTS 2"or "SKY SPORTS 3";

(12) the "Match Opener" graphic showing, at the beginning of the match, the badges or crests of the competing teams (each badge or crest appearing on a white disc), the competition in which they are involved, a representation of the trophy for which they are competing, and a statement that the broadcast is live from a particular venue, all above the "SKY SPORTS" logo described above. In the example shown in the Appendix, the badges or crests are of Celtic and Ross County, the competition is the Scottish Premiership, the trophy shown is the premiership trophy and it states that the broadcast is "LIVE FROM CELTIC PARK";

(13) the "Team names, score and clock" graphic, shown in the top left-hand corner of the screen throughout the match, comprising a dark blue bar on which, in white lettering and numbering, are shown the abbreviated team names (against a background of the team colour), the score and a digital clock showing how many minutes have been played. In the example shown in the Appendix it reads "CEL 0-1 ROSS COUNTY 02:45", the word "CEL" being shown against a green background; and

(14) The "RED BUTTON" logo referred to below.

[7] Until 31 October 2013, in cases where the broadcast was received via a domestic viewing card provided as part of a domestic package, a red dot ("Red Dot" or "Red Button" logo) was normally visible in the bottom right-hand corner of the television screen. It could be removed by the user pressing the "Backup" button on the remote control, or by programming via the remote control, each of which resulted in the Red Button appearing for a few seconds at the start of the programme (or after an advert break) and then disappearing. Where a non-domestic or commercial viewing card is used to receive a broadcast, a pint glass graphic ("the Sky Bug") is visible in the bottom right-hand corner instead of the Red Button, either in a standard version (uncoloured, suggesting an empty glass) or a version (coloured in red to suggest a full glass) showing that interactive information is available.

[8] All of these graphics are clearly distinctive, using a style identified with Sky Sports broadcasts. With the exception of the Sky Bug, which is not the subject of complaint here, they are referred to hereafter, in the form in which they appear in the Appendix to the Summons, as "the Works".

[9] The pursuers aver that the Works were created between January 2009 and August 2013 by teams of full-time employees of the second pursuers in the course of their employment and by third-party contractors engaged by them. It is unnecessary to go into any detail about this because, in terms of a Joint Minute entered into by the parties, it is agreed: (i) that the Works constitute artistic works in terms of the Copyright, Designs and Patents Act 1988 ("the 1988 Act")and that they qualify for copyright protection; (ii) that the copyright in those of the Works numbered 1 - 6 in the Appendix to the Summons is owned by the first pursuers; (iii) that the copyright in those of the Works numbered 7 - 14 in the Appendix to the Summons is owned by Sky; and (iv) that each the broadcasts of the football matches made by the second pursuers contains a copyright notice in respect of the Works. There was in fact no dispute that the pursuers owned the copyright in other versions of the logos and graphics in substantially the same form, differing only inasmuch as they referred to other Sky channels (such as "SKY SPORTS 3" and "SKY SPORTS 3 LIVE") or contained wording etc referable to different matches (for example Scotland v Belgium) and different competitions (such as a World Cup qualifier).

The defenders and the premises at Avalon Bar

[10] The first defender, Avalonbar Limited (sometimes referred to simply as "the company"), is the licensee of the premises at the Avalon Bar in terms of the Licensing (Scotland) Act 2005. It acquired the lease of the premises in July 2013. It conducts the business of inter alia selling alcoholic and other beverages from those premises. Its sole director is David McIntosh, who also owns all the shares in the company. The second defender, Sarah McIntosh, is his daughter. She is the Designated Premises Manager of the premises at Avalon Bar in terms of the 2005 Act.

[11] Sarah McIntosh was and is responsible for the day to day management of the bar. She was and is responsible for instructing the staff in their duties. During the second half of 2013 there were four other employees working at the bar at various times in addition to her. I heard evidence from two of them, Terri Gardner and James Thompson. However, Ms McIntosh was not responsible for dealing with television equipment or subscriptions, nor for ordering stock. That was done by her father, David McIntosh, on behalf of the company.

[12] The public area of the Avalon Bar is divided into a public bar and a lounge bar. There are three televisions, one in the lounge bar and two in the public bar.

Television and satellite equipment at Avalon Bar

(i) Satellite dishes

[13] David McIntosh gave evidence that when the first defender acquired the lease, the premises were in a very run down condition. He (or rather the company) was responsible for their refurbishment. He bought and installed the three televisions. There were two satellite dishes already in situ on the outside of the building. He had another satellite dish installed. His explanations of how this came about were vague and, to some extent, inconsistent. In his witness statement, he explained that when they took over the premises, there were two satellite dishes on the roof outside connected to a decoder box inside the premises. He said that the system did not work and he "therefore contacted the satellite supplier to come out and have a look". The satellite supplier installed a third satellite dish higher up on the building to get a better signal but no new decoder box was installed. His evidence in chief, to which he adhered in cross-examination, was rather different. He said that the two satellite dishes were connected to two decoder boxes. He was at the premises trying to get the television working sometime shortly before they re-opened the bar in July 2013. He saw a van parked outside which clearly belonged to someone involved in fixing satellite television, asked him if he could see what was wrong and, on his advice, got him to put up a new satellite dish. At the same time, the man "re-tuned" one of the other dishes on the building. It was not clear exactly what this "re-tuning" involved. Mr McIntosh said that after this had been done he could get free to view channels on the television and could also get a large number of foreign channels, perhaps 30 or 40 in all, many of which were Arabic. He thought about six of the channels provided live sporting broadcasts, but he was not interested in that because, he said, the Avalon Bar was not the kind of bar where people came to watch football. He just wanted to receive domestic television programmes. He thought there was a viewing card in one of the boxes.

[14] I do not consider that much turns on the difference in the two accounts given by Mr McIntosh as to how it was that he came to have another satellite dish fitted, save that it indicated a surprising vagueness about events which happened only some eight months ago. Of more significance, however, for present purposes, is the fact that when asked in cross-examination what channels he had requested that the satellite dish be set up to receive, he was unable to give any credible answer. My understanding of his evidence was that he had no discussion at all about what channels he wanted to receive. If he simply wanted to receive terrestrial channels, it is impossible to understand why he would ask, or even merely allow, the technician to fit a satellite dish. I formed the clear view that he must have wanted to have the opportunity of accessing satellite channels. But which channels? It was established in evidence that satellite dishes fixed onto buildings are aligned so that they receive signals from different satellites. Mr George Lawson, who is employed by Sky as Head of Commercial Operations and gave evidence before me, explained that in order to receive a signal from ART, one of the Arabic stations, the dish needs to be pointed at the Hotbird satellite (at 13°E); whereas to receive a signal from any of the Sky channels the dish needs to be pointed towards the Astra satellite (at 22.8°E). It is difficult to believe that a person wishing to have a satellite dish fitted, or to have another dish "re-tuned", would not give instructions as to which channels he wished to receive and would not even ask which channels the new dish (or the re-tuned dish) was capable of receiving. That is so even if, as Mr McIntosh sought to emphasise, he had no particular desire to receive live broadcasts of football matches in the premises.

[15] Mr Lawson said that, based on his observation of the satellite dishes on the building in January 2014, it appeared that two of the dishes (including the one newly fitted in July 2013) were aligned so as to receive a signal from the Astra satellite and therefore would have been able to receive Sky broadcasts. The third could well have been aligned so as to receive signals from the Hotbird satellite, but he could not be so sure about this. This part of his evidence was not challenged in cross-examination and I accept it. There was a fourth satellite dish in close proximity, which might have been capable of receiving other channels if it was big enough, but it probably belonged to another property and can be discounted for present purposes, since Mr McIntosh did not suggest that the premises had more than three dishes attached to the outside of the building.

[16] When an inspection was made of the satellite television equipment at the premises on 14 January 2014, two wires, which appeared to be feeds by which the satellite dishes would be connected to the decoder box, were found in the bar area on the same shelf as the decoder box. One was connected to the decoder box. That feed was labelled "Sky Dish Feed". The other was labelled "ART Sports Dish Feed". It was not ascertained whether either of these feeds was connected to any of the three satellite dishes on the outside of the building, and when on that date they tried to start up the decoder box it would not work. However, the existence of feeds labelled in this way provides material confirmation of Mr Lawson's evidence that two of the satellite dishes were aligned so as to be able to receive Sky broadcasts from the Astra satellite while the other looked as though it was aligned to receive broadcasts from ART and other Arabic stations from the Hotbird satellite.

(ii) Decoder boxes

[17] Mr McIntosh gave evidence that one of the decoder boxes broke down and was thrown away at about the end of September 2013. He was supported in this by Terri Gardner. Mr McIntosh explained that he smelt a burning smell and was concerned that it might cause a fire. Accordingly, he threw it away. That might in many circumstances have been a sensible course, but it had the unfortunate consequence that it was not available for inspection in connection with the matters at issue in this proof. I shall return to this point later. The other decoder box was inspected by the pursuers at the premises on 14 January 2014. At that time it was broken. It would not start up when plugged in and switched on. There was a suggestion that it had stopped working some time in November 2013. That decoder box, a Technomate TM5400 digital receiver, was lodged in process as production 7/1. It had no internet connection point. Terri Gardner said that they did not get television via the internet. Mr McIntosh thought that the other box which had been thrown away was also a Technomate box, but he could not be sure. Other witnesses could provide no further detail about the box which had been thrown away, since the boxes were placed on a high shelf behind the bar and were never taken down by staff for operational purposes (one was operated by a remote control and the other by reaching up above head height and pressing buttons on the box).

(iii) Viewing cards

[18] In order to receive subscription satellite channels is necessary to have a viewing card as well as a decoder box. In their Defences, the defenders said that, when the company acquired the lease of the premises, the equipment acquired with the premises consisted of the satellite dishes to which I have referred, a Technomark satellite reception box (an erroneous reference to a Technomate box of the type examined in the premises and lodged in process) and an ART Sports viewing card. They said that since the commencement of the proceedings with which I am concerned, i.e. since early September 2013, the ART Sports viewing card had expired, with the result that the company was able only to show free to view broadcasts.

[19] Mr Lawson gave evidence, which I accept, that the ART Sports viewing card referred to by Mr McIntosh related to ART (Arabic Radio & Television) who are broadcast is based in Saudi Arabia. They held rights for Premier league football in the Middle East and North Africa ("MENA") territory prior to the 2007/2008 season. At the start of the 2007/2008 Premier league season, Showtime Arabia won the rights to show Premier league games in the MENA territory until the end of 2009/10. After this, Abu Dhabi Media held the rights until 2012/13. Premier league matches in the current season (2013/14) are shown on Al Jazeera Sport (now branded beIN Sport) in MENA territory. ART also held the rights to Scottish Premier League football matches up until 2009. Mr Lawson explained that he checked which foreign broadcasters were showing which games on television as any particular time. He had not seen ART being used for broadcasting live football in the UK since 2009. His understanding was that they had not held any relevant sports rights for a number of years and that the ART channels had ceased broadcasting altogether. Accordingly, if when the premises were acquired in July 2013 the decoder box came with an ART Sports viewing card, that card would have expired years before and could not have been used to show any live football in August or September 2013.

[20] The ART Sports viewing card was not seen in the premises when the satellite equipment was inspected there in January 2014. Mr Lawson attended that inspection with certain others. There was an Al Jazeera viewing card numbered 322 37 69 2861 in the viewing card slot of the Technomate decoder box. It was a viewing card for home use only, not for use in commercial premises. Through a contact, Mr Lawson obtained information that that viewing card (i.e. the specific viewing card bearing that particular number) expired, so far as concerned the Events Package by which some of the sports channels are accessed, at the end of 2011 and that the remainder of the Al Jazeera viewing card subscriber rights expired on 16 March 2012. After that date it would not have been possible to show any football matches on pay TV channels using that Al Jazeera viewing card.

(iv) General summary

[21] The satellite equipment present at the premises on 14 January 2014 was not operational and could not be used to receive any satellite broadcasts. This was for two reasons: first, because the decoder box remaining in the premises was broken and could not be used; and, second, because there was no current active viewing card on the premises capable of being used in a decoder box (even if it was operational) to receive and decode satellite signals. Accordingly, as at that time, the only football matches which could have been shown at the premises would have been those on UK terrestrial television. Mr Lawson checked the television in the lounge bar and it was fully operational.

[22] However, the satellite equipment present then only gives a snapshot as at that date. There is no reason to think that the Sky satellite dish or dishes could not have been used had there been a working decoder box and an active viewing card. There was evidence that the decoder box found to be broken then was working up until November 2013. In addition, I infer from the evidence given by Mr McIntosh that the decoder box which was thrown away at about the end of September or beginning of October 2013 was working until that time. Either of them could have been used to receive satellite broadcasts if an appropriate viewing card was inserted. Accordingly, provided that a Sky Sports viewing card was available, as at August and September 2013 it is possible that the Sky satellite dishes could have been used to receive Sky Sports broadcasts using either of the two decoder boxes, or another decoder box brought in that purpose.

[23] Neither the company, as licensee, nor Sarah McIntosh, as Designated Premises Manager, holds a non-domestic or commercial subscription agreement with Sky to allow them to show Sky Sports broadcasts in the public or lounge bars at the premises.

Means of illicitly showing Sky broadcasts without a commercial agreement

[24] Mr McIntosh gave evidence that he had heard of cases where people had brought their home Sky decoder boxes into pub and bar premises and used their domestic viewing card to show Sky broadcasts on the pub and bar televisions. Mr Lawson confirmed that this could be done without difficulty. A satellite dish aligned to receive Sky broadcasts would be necessary. It was not specifically stated in evidence that the decoder boxes in the Avalon Bar could have been used for this purpose with a domestic Sky viewing card, but I heard nothing to suggest that they could not. But in any event it would not have been difficult to bring another decoder box into the premises. Mr McIntosh denied that this was ever done at the Avalon Bar. He said that there was a clear direction given to the premises Manager and the bar staff that Sky broadcasts were not to be shown.

[25] Mr Lawson said that another way of showing Sky broadcasts illicitly is by "card sharing". In essence, a paying subscriber will use his viewing card to access Sky broadcasts and then share the broadcasts with others via the internet. I understood this to require an internet connection on the decoder box. The Technomate decoder box found in the premises on 14 January 2014 and lodged in process did not have a port for an internet connection. It is not known whether the other decoder box which was thrown away at about the end of September 2013 had such a connection. Another decoder box with an internet connection could, of course, have been brought in, but Mr McIntosh denied that this was done and Terri Gardner said that they did not use the internet to get television channels.

3 August 2013

[26] Mr Gary MacGregor, an investigator for ID Inquiries Limited, attended the Avalon Bar at about 6.45 p.m. on Saturday 3 August 2013. This was one of the bars which he had been instructed to investigate to see whether unauthorised Sky Sports broadcasts were being shown. He bought a drink and sat towards the back of the lounge bar. The television was showing the football match between Celtic and Ross County in the Scottish Premier League. The match had kicked off at 5.30 p.m. and he had watched the first half in other premises.

[27] According to his evidence, the match was clearly being shown on Sky Sports 1. He was able to say this because there was a "SKY SPORTS 1 LIVE" logo on the top right hand side of the television screen. In addition he saw various other Sky Sports logos and graphics, including the "Team names, score and clock" logo and the "Red Button" logo. He could hear that the commentary was in English. He was fairly sure that the commentator was Ian Crocker, a Sky Sports commentator who regularly commentates on Scottish football matches. There was no "Sky Bug" logo, which would have indicated that the feed was a commercial feed, but there was a "Red Button", which indicated that what was being shown was from a UK domestic feed. He only stayed in the premises for some 11 minutes. He thought that there were around six people in the lounge bar at the time.

[28] On leaving the Avalon Bar, he went back to his car and prepared his Report. It was his invariable practice to complete a report for one bar before proceeding to visit another. This was what he was instructed to do by ID Inquiries. It eliminated the possibility of confusing his observations of one bar with those of another.

[29] His Report was lodged in process. It noted the time he entered the bar and the time he left. He gave the number of persons present as: 6. He noted that live football was being shown on television. The Report form contains a section for "On Screen Information". There is a question on the form asking whether the "Red interactive button" was visible on screen. Mr MacGregor circled "Yes" and noted that its position on screen was bottom right ("B/R"). There is a question asking whether the "Channel Logo" was visible on screen. Mr MacGregor circled "Yes" and noted its position on the screen as "Top Right". There is a question asking whether the "Pint logo", i.e. the Sky Bug logo, was visible on the screen. He circled "No". He indicated on the form that he could not see the decoder or remote control units. He circled "Yes" to indicate that he could hear the commentary and noted that it was in English. The form encouraged him to fill in the name of the commentators, if he recognised them. He had written "Not Known". This was at odds with his oral evidence, where he said that although he could not be certain whose voice it was, he thought (or was fairly sure) that it was Ian Crocker. The Report form continued with a space for him to insert the "Channel Logo displayed". He wrote "Sky Sports 1 Live". He noted the names of the teams as Celtic and Ross County, that the score was 1 - 1 and that 76 minutes had been played. He said that the entry about the score and the number of minutes played reflected the position at the time he left. The report form concluded with a description of the bar staff and an observation as to certain internal features of the premises. On the back he noted that there was one TV facing the entrance and he drew a small sketch plan of the bar.

Commencement of proceedings and interim interdict

[30] The pursuers commenced proceedings on 6 September 2013. On that day they obtained interim interdict in the following terms:

"ad interim, interdicts the defenders, or either of them, by themselves or by their servants or agents or associated companies or anyone acting on their behalf, from infringing the pursuers' copyright in the artistic works ("the Works") identified in the Annex to the summons by communicating them to the public and, in particular, in the absence of any agreement from the second pursuers permitting them to do so, from showing broadcasts of football matches made by the second pursuers including the Works on televisions in premises licensed in terms of the Licensing (Scotland) Act 2005 in respect of which they are the licensee or the Premises Managers."

That order was served on both defenders (the company and Sarah McIntosh) at about 6 p.m. by messengers at arms. Ms McIntosh was served personally as she was about to leave the bar for the evening. She gave evidence to the effect that the sheriff officers, as she called them, told her that she was not to show Sky on the television and that it could be a breach of the court order if she did. Her evidence was that she thought that this was no problem because they did not show Sky at the Avalon Bar. She did not inform her father, David McIntosh, about being served with the interdict. She did not tell Terri Gardner, who was working at the bar that evening, any detail about what the messengers at arms had said. Terri Gardner thought that Sarah McIntosh may have said that it was about Sky, but she paid little attention because she was busy serving people.

6 September 2013

[31] At about 8 p.m. on the evening of Friday, 6 September 2013, two other investigators working for ID Inquiries attended the Avalon Bar to investigate whether, notwithstanding the interdict granted by the court, Sky television was being shown in the bar. These were Alan Stevenson and his wife Jacqueline Stevenson, both retired police officers.

[32] They gave evidence that they arrived at about 8 p.m. The World Cup qualifier football match between Scotland and Belgium was being shown on all three televisions within the premises. They bought drinks and sat down at a table to watch. They both gave evidence that the match was clearly being shown on Sky Sports 3. According to their evidence, there was a "SKY SPORTS 3 LIVE" logo at the top right hand corner of each television screen. In addition, there were various Sky Sports logos and graphics being shown throughout the broadcast of the match. They recollected logos and graphics identical to those referred to above as numbers 2, 3, 9, 10, 12 and 13, with these differences, that instead of "Sky Sports 1" the reference was to "Sky Sports 3", instead of Celtic and Ross County the teams were named as Scotland and Belgium, with their crests or badges being shown, and with differences as regards the upcoming events such as the half-time analysis and the future matches to be shown. In other words, the artwork was the same, with the same shaped and coloured boxes, the same style of lettering, the same presentation of team crests or badges, the trophy for which they were playing, and so on, albeit that some of the words and numbers were different. There was no Sky Bug logo at the bottom right hand side of the screen, nor was there any Red Dot.

[33] They left the bar at about 8.50 p.m., a few minutes after half-time. They waited until the advertisements came on and noted advertisements for Peugeot 208, MBNA, Oak Furniture Land, RBS Cashback Plus and Churchill, in that order. Jacqueline Stevenson noted the advertisements on her mobile phone.

[34] Mr and Mrs Stevenson also noted that there were posters on the wall advertising the fact that the Scotland v Belgium match was going to be shown on Sky Sports in the bar. The staff were giving out wristbands promising a free pint if Scotland won the match.

[35] Immediately on leaving the bar, Mr and Mrs Stevenson went back to their car and filled in a Report on the same form as that used by Mr MacGregor on the previous occasion. They noted that live football was being shown on television. The Channel logo displayed was "SKY SPORTS 3 LIVE". They noted that they heard commentary by Ian Crocker and Davie Provan. They noted that, when they left, the teams had played for 45 minutes and the score was 1-0 to Scotland. They noted down the details of the advertisements as set out above.

Minute for contempt

[36] On 10 October 2013 the pursuers lodged a Minute in process seeking to have both David McIntosh, in his own right and as representing the company, and Sarah McIntosh, in her personal capacity, ordained to appear personally before the court to answer the charge against them of being guilty of contempt of court and breach of interdict. Answers were lodged to that Minute, and the Minute and Answers were subsequently adjusted. As noted earlier, a critical feature of the dispute between the parties is as to whether the live football broadcasts seen in the Avalon Bar on the two occasions were Sky Sports broadcasts. If so, then there is no dispute that the defenders infringed the pursuers' copyright in the Works, though there is still an issue as to whether the defenders were in contempt of court in relation to the broadcast on 6 September.

[37] Although the Minute was directed against David McIntosh in his own right as well as in his capacity as representative of the company, at the end of the proof the pursuers made it clear that they did not pursue the contempt of court case against him personally.

3 August 2013 - evidence and findings

[38] I have already set out the evidence of Mr MacGregor in respect of his visit to the premises on 3 August. His evidence was challenged in cross-examination. It was suggested that he might, on this occasion, not have compiled his Report immediately after leaving the Avalon Bar but only at the end of the evening, particularly if he was in a hurry to investigate a number of bars on the list provided by ID Inquiries. He did not accept that that was the case. Although he was given a list of bars to visit, it was not expected that he would necessarily have time to visit them all - it would depend upon how long he had to spend in each in order to complete his investigations. His practice was always to fill in the Report before moving on to the next bar. It was suggested that he was in error about the number of people in the bar. He disputed this, but did not pretend that his count was necessarily exact. It was suggested that he "saw" what he expected to see, in other words that he was expecting to see a Sky broadcast of the match and therefore was expecting to see Sky logos and graphics on the screen - his Report was to this extent unreliable. It was suggested that he had a financial interest in providing evidence that the bars which he visited were in fact showing live Sky broadcasts. In rejecting this suggestion, he explained that he was paid by the evening, regardless of results and regardless of how many bars he had time to visit. It was suggested that he did not hear the commentary and could not identify the commentator. He was adamant that the commentary was in English and he was pretty sure that it was Ian Crocker. It was suggested that he was confused or, if not confused, lying. He rejected both suggestions. The outcome of the case made no difference to him. He was not given any incentives to find that live Sky broadcasts were being watched in pubs and bars, nor was there any promotion or bonus if he provided evidence to that effect.

[39] The evidence led for the defenders came in two forms. First, there was a general denial of the ability to access Sky broadcasts in the bar. Mr McIntosh said that they did not have a Sky subscription. He gave instructions that Sky was not to be shown. Sarah McIntosh too was adamant that they did not have Sky on the premises. Secondly, there was evidence given by Sarah McIntosh herself who was working behind the bar on 3 August. She said that she was asked by a customer if she could find the Celtic game and therefore flicked through the channels at the start of the second half to see if she could find it. She said she found it on a foreign channel. She could not say for certain which channel it was on but it certainly was not Sky because the commentary was in a foreign language. None of the Sky logos and graphics referred to by Mr MacGregor were shown on the screen.

[40] In support of the case that the match could have been accessed in this way, Ms McIntosh said that they would often go to a website run by LJ Sports called "LiveOnSat.com" which gave listings of the channels on which particular football matches were shown worldwide. She did not do that on this occasion, preferring instead simply to flick through the channels. However, a printout of that website for Saturday 3 August 2013 was lodged in process to indicate the channels on which she might have found the live broadcast of the match. The website showed that the Celtic v Ross County match at that time on that day could be accessed by a number of channels apart from Sky Sports 1. These included: 5 LIVE (Israel); Setanta Africa; Sport TV2; SportKlub 2; and Telekanal Futbol, as well as four channels in Australia, the UK and the USA all of which required an Internet connection. There was no evidence that any of these channels could be accessed at the Avalon Bar. The decoder box inspected in January 2014 did not have any means of internet connection. If the other decoder box was the same, and if Ms Gardner was correct in saying that television was not accessed via the internet, that would rule out the four channels requiring an internet connection. Of the others, evidence from Mr Lawson was that SportKlub was a subscription channel, requiring a viewing card. Although Sarah McIntosh suggested that she quite often found matches on SportKlub, Mr McIntosh said that the defenders did not subscribe to any satellite channels. On that basis, Sarah McIntosh's evidence must be incorrect.

[41] I found Mr MacGregor to be an impressive and reliable witness. He noted down in his Report the important observations made by him during his visit. That included noting that he had seen the "SKY SPORTS 1 LIVE" logo and the Red Button but not the Sky Bug. He did not note in his Report the other Sky logos and graphics which he saw, and the evidence of what he did see was, on his own admission, not necessarily exhaustive of all the logos and graphics which appeared on the screen while he was there. His evidence, backed by a contemporaneous record of his findings, was compelling.

[42] By contrast, the evidence given by David McIntosh and Sarah McIntosh was vague. I did not accept David McIntosh's account of having a satellite dish fitted without either asking for it to access a particular channel or finding out which channels it accessed. Apart from that, his evidence amounted to no more than a general assertion that Sky television was not accessible at the premises. He could have countered the specific evidence of the ID Inquiries investigators that they had seen Sky Sports logos and graphics by producing evidence to show either that none of the satellite dishes pointed towards the Astra satellite and that they were therefore incapable of receiving Sky broadcasts, or that he had the equipment (in the form, for example, of a correctly aligned satellite dish, a decoder box and an appropriate viewing card) capable of accessing other channels and thereby receiving live broadcasts of the match without using Sky. But he chose to do neither.

[43] While I found nothing in Sarah McIntosh's demeanour or manner of giving evidence to suggest that she was deliberately lying, the totality of the evidence leaves me in no doubt that the live broadcast of the Celtic v Ross County match that evening was a Sky broadcast and that the Sky logos and graphics were shown on their televisions in the Avalon Bar that evening during the broadcast.

6 September 2013 - evidence and findings

[44] The evidence of Alan and Jacqueline Stevenson was challenged along much the same lines as that of Gary McGregor. Their answers were to the same effect. In addition, they were challenged on the basis that the Report which they compiled was effectively a composite report, combining both their recollections. They accepted that, to some extent, but it was a composite report prepared immediately after they left the Avalon Bar and therefore reflected their combined immediate recollection. I do not consider that this affected the quality of their evidence at all. It was not a case of them having discussed their evidence immediately before a court case, some considerable time after the events about which they were to speak.

[45] In addition to the general evidence given by David and Sarah McIntosh as to the absence of Sky television at the bar and as to the possibility of accessing live football broadcasts via a number of other (mainly foreign) channels, I heard evidence from Terri Gardner who was working at the Avalon Bar that evening. Her evidence was that she could get live football broadcasts from a number of channels (she could not say how many) coming from outside the UK, including Al Jazeera. She could not remember whether on that particular night she looked up the listings on the website but she was confident that she accessed the live broadcast from a channel which was not Sky Sports 3. She said that they did not get Sky. She said that it would have been one of the channels listed on the "LiveOnSat" website. The pages from the website for that day were lodged in process. Apart from Sky Sports 3 and a channel accessible only through the internet, the channels on which the Scotland v Belgium match was to be broadcast included three SportKlub channels (for Croatia, Serbia and Slovenia), two ESPN Dos channels (one of them for Mexico) and three others, GMG Football, RTPF La Une and Vier (Belgium). There was no evidence as to which, if any, of those channels were accessible without a subscription, nor was there any evidence that they could be accessed using the satellite dishes installed on the outside of the building.

[46] I found Alan and Jacqueline Stevenson to be compelling and reliable witnesses, for much the same reasons as I found Gary MacGregor to be compelling. Their evidence was based upon a carefully compiled Report made immediately after their observations on 6 September 2013. It was countered only by evidence of the vaguest sort.

[47] In addition, however, their evidence included evidence of the advertisements shown at half time. In her statement, which was accepted in the Joint Minute as her evidence without the need for her to be called to give oral evidence, Karen Anderson, a Commercial Policing Operations Executive employed by Sky, confirmed that those advertisements were, in the same order, the first five advertisements shown at the half-time break during the Sky Sports 3 broadcast of the Scotland v Belgium match that evening. Neither Alan nor Jacqueline Stevenson was cross examined as to the reliability of their evidence concerning the advertisements shown on the television screen in the Avalon Bar at the half-time break and, as I have said, Karen Anderson was not questioned on her evidence that these same advertisements were shown in the same order on the Sky Sports 3 broadcast. This provides strong support for the pursuers' case.

[48] There is one further point. Sarah McIntosh accepted that at the time of the broadcast on 6 September there were posters up inside the Avalon Bar advertising the fact that they would be showing the Scotland v Belgium match live on Sky, and that there would be a free pint for everyone if Scotland won the match. This was an advertising campaign at the instance of the brewery. Ms McIntosh said that they put these posters up because they were required to do so, but it did not matter to their customers whether the broadcast was on Sky or on some other channel. The brewery knew that they did not have Sky. I found this evidence difficult to accept. If they did not have Sky, they would not have put up the posters advertising that the match would be shown on Sky television.

[49] Having regard to all the evidence, but in particular to the evidence of Alan and Jacqueline Stevenson, and in particular their evidence not only of the Sky logos and graphics which they saw on the television screens but also of the advertisements shown during the half-time interval, I am left in no doubt that the screening of the Scotland v Belgium match on 6 September 2013 was a live Sky Sports 3 broadcast and, as such, infringed the pursuers' copyright in the Works. If that means that I have to disbelieve parts of the evidence of Terri Gardner, so be it. On the face of it she was an impressive witness who gave her evidence in a relaxed and apparently honest manner. She may well have found the match by flicking through the channels, but I am satisfied that she found it on a Sky channel and, therefore, that her evidence to the contrary was untrue.

Conclusion on infringement

[50] Mr McIlvride, who appeared for the defenders, accepted that if I found that the broadcast of the football match shown in the Avalon Bar on 3 August 2013 was a Sky Sports 1 broadcast, it followed that that broadcast would have contained images of the Sky logos and graphics constituting the Works. On that hypothesis he accepted that the pursuers' case on infringement would be made out and they would be entitled to perpetual interdict. Since I have found that the broadcast was a Sky Sports 1 broadcast, it follows that the infringement case succeeds and I shall grant interdict in accordance with the first conclusion of the Summons.

Contempt of court

[51] Mr McIlvride also accepted that, if I found that the broadcast of the football match shown in the Avalon Bar on 6 September 2013 was a Sky Sports 3 broadcast, it followed that that broadcast too would have contained images of the Sky logos and graphics constituting the Works. The "SKY SPORTS" logo, number 1 on the list in the Appendix to the Summons, appears on some of the other logos more specifically linked to other Sky Sports channels (such as Sky Sports 3) or focussed on particular matches ( such as the Match Opener logo, number 12 on the list). Showing the Scotland v Belgium match on Sky Sports 3 would, therefore, have included showing at least that "SKY SPORTS" logo. In addition, Mr Lake QC, who appeared for the pursuers, directed my attention to section 16(3) of the 1988 Act and cases such as Designers Guild v Russell Williams (Textiles) [2000] 1 WLR 2416 at 2422C-H, 2426A-C and 2430H-2431C and Cala Homes (South) Limited v Alfred McAlpine [1995] FSR 818 at 844 (Annex 2), for the proposition that showing a substantial part of the work is sufficient to constitute infringement. The intellectual and artistic creation of the designers of the Sky graphics and logos lies not in the particular words and numbers used in showing particular matches (Celtic, Ross County, 2-1, etc) but in the particular design and layout in and against the background of which those words and numbers appear. Showing the graphics and artwork, even where the words are not "Celtic" etc but "Scotland", "Belgium" and so on, infringes the copyright in the Works, at the very least because it amounts to substantial reproduction of the Works, even if not exact. I accept that submission. Mr McIlvride did not argue to the contrary. On the hypothesis, which I find to be established, that the Scotland v Belgium match was shown on Sky Sports 3 in the Avalon Bar on 6 September 2013, he accepted that there was further infringement on that day.

[52] However, Mr McIlvride did not accept that the defenders were thereby in contempt of court. He advanced a number of arguments as to why they were not.

[53] First, under reference to Gribben v Gribben 1976 SLT 266 he submitted that the onus of proving that either defender had breached the interim interdict rested upon the pursuers and, more importantly, that the appropriate standard of proof was proof beyond reasonable doubt. Mr Lake QC, who appeared for the pursuers, accepted this, and so do I. But it avails the defenders little since, for the reasons I have sought to explain, I am satisfied to that standard that the broadcast of the Scotland v Belgium match on 6 September 2013 was a Sky Sports 3 broadcast.

[54] Second, he submitted that even though it might be established that the broadcast on 6 September 2013 was a Sky Sports 3 broadcast, it did not follow that it was shown in breach of the interim interdict granted earlier on that day. The reason for that turned on the wording of the interdict. That interdicted the defenders from infringing the pursuers' copyright in "the Works" identified in the Annex to the Summons, and in particular by showing broadcast of football matches including "the Works" in the premises. Mr McIlvride pointed out that the expression "the Works" has a particular meaning, and is limited to the precise logos shown in the Annex. Items 2 and 3 in the Annex are logos for "SKY SPORTS 1" and "SKY SPORTS 1 LIVE", whereas what had been shown on 6 September 2013, on the findings of fact which I have arrived at, were logos for "SKY SPORTS 3" and "SKY SPORTS 3 LIVE". Item 9 in the Annex is the NEXT Logo, showing what is to happen at full-time in the context of a Celtic v Ross County match, with the score at 2-1. The broadcast on 6 September 2013 concerned a different match and therefore did not display the NEXT logo relating to the Celtic v Ross County match. Similar points were made in respect of items 10, 12 and 13. For example, item 12 is the Match Opener logo. In the Annex to the Summons, the badges or crests shown are those of Celtic and Ross County and the trophy shown is the Scottish premiership trophy. That was not shown in that form on 6 September 2013 - it would have been the Scotland and Belgium badges or crests and the trophy shown would have been the World Cup. Mr McIlvride emphasised, under reference to Murdoch v Murdoch 1973 SLT 13 that the terms of an interdict must be so precise and clear that the person interdicted is left in no doubt what he is forbidden to do. I accept that. However I do not consider that there could have been any confusion in this case. It is perfectly clear that the interdict was not intended simply to prevent the defenders showing a live Sky broadcast of the match between Celtic and Ross County, nor yet to prevent them showing that broadcast only when it was on Sky Sports 1 or when the score was 2-1 or 1-0 or whatever. That would make a mockery of the interdict. In any event, the broadcast on 6 September 2013 did include the "SKY SPORTS" logo - it appears on the Match Opener graphic - so at the very least there was a clear breach on this account. But for the avoidance of doubt, I prefer to rest my decision on the broader basis that the interdict clearly sought to prevent future showings of Sky Sports live sports broadcasts and would have been understood in that way. I am satisfied that the showing of the Scotland v Belgium game on 6 September 2013 amounted to a clear breach of the terms of the interim interdict and that both the company and Sarah McIntosh would have appreciated that.

[55] Third, while he conceded that on those findings it followed that the first defenders, the company, would have breached the interdict, it did not follow that Sarah McIntosh herself had breached it. She was not vicariously liable for the actions of the company, nor for the actions of other members of staff employed by the company. I accept that she is not to be held liable for the actions of the company or other members of staff. However, it is clear that her role as the Designated Premises Manager of the Avalon Bar was to give instructions as to what could or could not be done by members of staff. If they breached those instructions, that did not make her vicariously liable for their acts. The other hand, if she authorised the match to be shown live on television, and she did so knowing full well that that could only be achieved by showing it on a Sky channel, then she is responsible for the actions of the staff in acting with her authority, not by reason of the doctrine of vicarious liability but under ordinary principles of agency, because their actions, carried out with her authority, become her acts. As is made clear in section 16(2) of the 1988 Act, the act of infringement is carried out not only by showing the work without permission but also by authorising others to show the work. The terms on the interdict specifically prohibit the defenders "by themselves or by their servants or agents ... or anyone acting on their behalf" showing the broadcasts. I am satisfied in the present case that she did authorise the match to be shown live. She knew that it was the practice to show live Sky Sports broadcasts of football matches. In relation to the Scotland v Belgium match, she instructed or authorised the putting up of posters advertising that the match would be shown on Sky Sports. When she was served with the interdict, she ought to have given instructions to her staff that the match was not to be shown. She failed to do so. She permitted the staff to continue to act under the previous authorisation to show the match and must take responsibility for that.

[56] Accordingly, I shall ordain David McIntosh, as representative of the first defender, and Sarah McIntosh to appear before the court to answer the charge of them being guilty of contempt of court and breach of interdict.

Disposal

[57] I shall grant interdict in terms of the first conclusion to the Summons. I shall ordain David McIntosh, as representative of the first defender, and Sarah McIntosh to appear on a date to be fixed to answer the charge of them being guilty of contempt of court and breach of interdict. On that date I shall hear argument in relation to the question of what, if any, punishment I should impose in respect of the defenders' contempt of court.

[58] I shall put the case out by order on the same date to determine what further steps are required to be taken in the main action. At that by order hearing I shall consider argument as to whether and, if so, in what terms to order an account to be taken of profits realised by the defenders by reason of their infringement of copyright.