General

Copyright and Premier League Football in South Wales Pubs – Making Sense of the Law – Dr Luke McDonagh

The issue of copyright infringement in relation to Sky satellite television broadcasts – and broadcasts of Premier League football matches in particular – has recently made national news headlines. In late January several pubs in South Wales, including pubs in Cardiff and Swansea, were accused by agents representing the Premier League of broadcasting football games without the appropriate Sky TV licence. Then in mid-February, the BBC Inside Out news programme published the results of their investigation into the illicit sale and use of ‘hacked’ or ‘cracked’ satellite decoders which allowed users to access all of Sky’s satellite television channels without the need for the usual monthly subscription. From a legal perspective, the issue of copyright in broadcasts of games is a complex one, and it must be broken down into several different legal questions.

Dealing first with the issue of watching Premier League football matches in the pubs of Cardiff, Swansea, and elsewhere, the current story is very much related to a 2011 ruling of the Court of Justice of the European Union (CJEU) – Football Association Premier League Ltd & others v QC Leisure & Others / Karen Murphy v Media Protection Services Ltd (Cases C-403/08 and C-429/08).

This ruling came about after a preliminary reference from the UK courts concerning a pub landlord’s conviction for showing Premier League football matches in her pub without a UK Sky commercial subscription. Instead, Karen Murphy used a Greek TV decoder box and subscription. Resolving the issue was important for both the Premier League and Sky because of the huge amount of money involved in the licensing of broadcasts of UK football – most recently, Sky and BT paid £3bn in 2012 for the rights to broadcast live games until 2016. However, the Premier League also has separate licensing deals with broadcasters elsewhere in the EU, and the crucial question in the Murphy case was whether a UK subscriber of those non-UK services was acting within the law.

From an EU law perspective, the CJEU found that the freedom of services provisions of the EU treaties meant that Karen Murphy was entitled to avail of broadcast services (the Greek TV service, Nova) which were legally available in another member state.

Furthermore, from a copyright perspective it was confirmed that a football match is not a copyright work in itself. However, the CJEU found that any surrounding media, such as any opening video sequence, the Premier League anthem, and various graphics, were copyright works, and that no licence had been given by the owners of these works for broadcast in the UK, other than via Sky’s official services.

Therefore, the effect of the ruling appeared to be that if a publican had a genuine licence agreement with an EU-broadcaster – such as the Greek Nova service used by Karen Murphy – then the pub could legally show live broadcasts of games via this service. However, from a strict legal perspective because the pub would necessarily show the Premier League logo and broadcast the anthem (both protected by copyright) it seemed that there would still be a breach of copyright since the owners of these works had not licensed their works to be used in this way.

Thus, even though the CJEU clarified some issues, there remained considerable uncertainty over how the courts would deal with breaches of copyright concerning the Premier League’s logo and anthem when these breaches occurred as part of the legitimate use of foreign broadcasts. Nonetheless, the many media reports which came out during 2011-12 on the Murphy case tended to report it as a ‘victory’ for the small publican ‘David’ against the Premier League ‘Goliath’. It seems, unfortunately, this may have led to something of a ‘free-for-all’ amongst publicans with respect to their attitudes over the broadcasting of live football, and it is here that the issue of the ‘hacked’ satellite decoders comes in.

A hacked satellite decoder has been altered so that it can make use of an internet connection to trick the decoder into thinking it can access premium satellite channels e.g. Sky Sports. In recent years a large black market has developed in the UK for these services, which are in clear violation of the broadcast provisions of the UK Copyright, Designs and Patents Act 1988. It seems that increasingly domestic consumers in the UK are turning towards these services as a way to access Sky television much more cheaply than with the official subscription. The recent BBC Inside Out investigation caught out several operators who were selling these illicit decoders. However, it has recently come to light that some publicans – perhaps acting under the false impression that the Karen Murphy case allowed it – have also been using hacked decoders to access games. In January 2014, a man in Luton was sentenced to 16 months in prison for supplying these services to pubs.

There are, therefore, a number of ways that pubs can breach the law. First, pubs ought to be aware that the use of hacked decoders in the way described above is a clear breach of copyright law – and that since they are doing it a commercial context it may even bring criminal penalties. Secondly, a pub which shows Sky Sports Premier League games with only a personal licence – not a commercial pub licence – would also be in violation of the law. Thirdly, a pub which is showing Premier League games via a non-EU based satellite decoder e.g. Albania would also be violating the law as this would not be covered by the Murphy ruling.

On the other hand, a pub which is showing Premier League games via a licensed EU-based satellite decoder, such as in the Karen Murphy case, would not be violating the law with respect to the live broadcast of that game, since the broadcast has been access via a legitimate EU-based service, and the game itself is not a copyright work. However, the broadcast of the Premier League logo and anthem would appear to violate copyright as the rights to communicate these works to the public have not been licensed by the owners in this way. Some have argued that a pub which uses masking technology to blur or block out the Premier League logo and prevent the anthem from being played would not violate the law. However, the recent news reports on the Cardiff and Swansea pub investigations noted that the investigators did not find any pubs that were in fact using such masking technology. In terms of civil and criminal penalties, it remains to be seen how the courts in the UK will deal with any cases that are taken on this basis, given that the infringements seem relatively incidental. Nonetheless, pubs will need to weigh up whether the cheaper EU-based service is really worth the trouble given the Premier League’s clear intention to use every resource available to clamp down on non-Sky or BT licensed broadcasts. Indeed, the attitude taken by Sky and the Premier League clearly shows an acute fear that consumers will migrate away from high-cost, official paid-subscription services, and instead seek to gain the services from elsewhere in the EU, or illegally via the use of hacked decoders. Many football supporters are also increasingly using internet sites to watch games via foreign broadcasts, something else the Premier League is trying to crack down upon.

Indeed, there is little doubt that as online and broadcast technology continues to move forward, the current business model of the large TV broadcasters increasingly looks under threat. In the United States, the same thing is true of the large subscription-based broadcasters such as HBO and Showtime which are beginning to lose subscribers to cheaper online services such as Netflix. In fact, it’s not difficult to imagine a future where football fans subscribe to an online Netflix-style service to access every one of their team’s games – as well as a corresponding service to allow pubs to broadcast the games to the public. However, whether such a service would be capable of generating the equivalent of the £3bn the UK broadcasts rights of Premier League games is currently worth is another question entirely, and one which is clearly causing the League and Sky a lot of concern at the moment.