c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6
ava i lab le at www.sc ienced i rec t . com
www.compseconl i ne .com/ publ i ca t ions /prodc law.h tm
Broadcasting regulation
Sky and the Premier League v. Pub Landlords
Penelope Thorntona, Kensaku Takaseb
aLovells IPMT Department, London, UKbLovells IPMT Department, Tokyo, Japan
0267-3649/$ – see front matter ª 2008 Lovelldoi:10.1016/j.clsr.2008.01.008
a b s t r a c t
This article looks at two recent key decisions in relation to the offence of fraudulently
receiving programmes under sub-section 297(1) of the Copyright, Designs and Patents Act
1988 (‘‘CDPA’’). Interestingly the Courts took quite different approaches and arrived at
very different conclusions. The earlier case is Gannon v. F.A.C.T. [Gannon v. F.A.C.T. [2006]
Bolton Crown Court A 20050128] which was heard before the Bolton Crown Court where
the Court found in the publican’s favour. The most recent case is a High Court case, Karen
Murphy v. Media Protection Services Limited [Karen Murphy v. Media Protection Services Limited
[2007] EWHC 3091 (Admin)]. In this case the Court found the publican’s activities to be illegal
and is thus is a victory for the Premier League and a major blow for publicans, but is the legal
foundation of the decision sound? We look at how the Court interpreted section 297 CDPA
and how it has seemingly broadened the scope of the section beyond the original intention
behind the provision: protecting encrypted broadcasts from pirates.
ª 2008 Lovells LLP. Published by Elsevier Ltd. All rights reserved.
1. Introduction deal. Nevertheless, BSkyB and the Premier League’s symbiotic
Watching Premier League football matches on the weekend in
the pub is part of British culture. However, for some publicans
the price to pay the UK broadcaster BSkyB is more than it is
worth, and some have sought alternatives. The most popular
is to show foreign broadcasts of the same Premier League
matches by purchasing equipment and paying a licence fee
to a foreign broadcaster, the legality of which has been chal-
lenged by the Premier League.
Since its formation in 1992 the Premier League has granted
BSkyB the exclusive right to broadcast live Premier League
matches in the UK. Those rights are now sold for billions of
pounds. Last year, however, following a European Commission
decision that exclusive rights should not be sold to one televi-
sion company, BSkyB’s monopoly ended and Irish broadcaster,
Setanta Sports, was awarded rights to show two out of the six
packages of matches available from the Premier League. BSkyB
and Setanta together paid a total of £1.7 billion for a 3 years
s LLP. Published by Elsev
relationship continues and together they work hard to protect
the enormous value of the television rights, which has become
vital for the survival of the clubs, with a policy of bringing crim-
inal prosecutions rather than civil actions for damages.
2. Technology
To understand the issues, it is necessary to have a basic
knowledge of how the broadcasting arrangements work.
When a television transmission is uplinked to a satellite
and transmitted back to the earth, the earth area where that
transmission can be received is known as a ‘‘footprint’’. Where
countries are close together (as in Europe) and the footprint
overlaps two countries, it is sometimes possible to receive
television transmissions intended for neighbouring countries.
Often for commercial reasons, to avoid certain television
transmissions being viewed outside a particular country or
ier Ltd. All rights reserved.
c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6182
by people who have not paid for the transmission, the trans-
missions are encrypted by the broadcaster. A satellite dish,
decoder and decoder card will then be required by a person
wanting to view the transmitted programme.
In recent years UK publicans have increasingly turned to re-
ceiving foreign transmissions of UK Premier League football
matches and screening such transmissions for UK customers in
order, they say, to avoid these high costs. This also has the effect
of circumventing the Premier League’s prohibition on live trans-
missions on Saturday afternoons (the so-called ‘‘closed’’ period).
2 http://news.bbc.co.uk/1/hi/business/6594775.stm – BBC articledated 5 June 2007 titled ‘‘Pub football fight hots up’’ by AnthonyReuben.
3 According to the BSkyB website, MPS is ‘‘a specialist fraud detec-
3. Gannon v. F.A.C.T.
In the Gannon v. F.A.C.T. case of March 2006, the publican, Mr
Gannon had purchased a decoder and enabling card for £1756.
This equipment allowed him to receive transmissions of live
Premier League football matches intended for reception in
Greece during the so-called ‘‘closed period’’ on a Saturday af-
ternoon (when no live transmissions are permitted in the UK
in order to protect match attendance figures). The equipment
used by Mr Gannon originated in Cyprus was imported into
the UK and sold in the UK to the company from which Mr Gan-
non bought the equipment. The equipment received the satel-
lite signal from a Greek broadcast that in turn had originated
from the UK.
Mr Gannon was prosecuted under sub-section 297(1) of the
CDPA for the offence of ‘‘fraudulently receiving programmes’’.
Sub-section 297(1) states
A person who dishonestly receives a programme included in
a broadcasting service provided from a place in the UK with intent
to avoid payment of any charge applicable to the reception of the
programme commits an offence and is liable on summary convic-
tion to a fine not exceeding level 5 on the standard scale.
The Court stated that whether the defendant has acted dis-
honestly is a question of fact and applied the test laid down by
the House of Lords in R v. Ghosh,1 being whether, according to
the ordinary standards of reasonable and honest people, what
was done was dishonest and, if so, whether the defendant real-
ised that what he was doing was dishonest by those standards.
The Court held that the prosecution had not proved its case
under section 297(1). The court was not sufficiently satisfied
that Mr Gannon had acted dishonestly because the court did
not think Mr Gannon must have realised that what he was
doing would be regarded as dishonest in the Ghosh sense.
The Court also went on to indicate that it was not satisfied
that
(a) the signal that had emanated from the UK (that is, the Pre-
mier League signal to the non-UK Premier League li-
censees) was a ‘broadcast’ and/or a ‘broadcasting service’
within the meaning of the CDPA;
(b) the signal was uninterrupted from its point of origin in the
UK to its eventual destination at Mr Gannon’s pub; and
(c) the transmission received by the decoder at Mr Gannon’s
pub was a broadcast from the UK.
1 R v. Ghosh 75 Cr APP.
In effect the Court thought that what was received by Mr
Gannon might in fact be a retransmission (that is, a separate
broadcast) from Greece and therefore not a ‘broadcast’ within
the CDPA. Under section 6 CDPA the relaying of a broadcast by
reception and immediate retransmission is a separate act of
broadcasting.
The Court did not provide a detailed analysis of the rele-
vant CDPA sections. The Court doubted that it was the appro-
priate forum for the determination of the case and stated that
the issues would have been better determined in the High
Court or Technology and Construction Court.
In fact, it was not long after the Gannon decision that a
further case was heard before the High Court: Karen Murphy
v. Media Protection Services Limited that was decided in Decem-
ber 2007. Unlike the Gannon case, the Murphy case contains
a more detailed analysis of the provisions of the CDPA.
4. Karen Murphy v. Media Protection ServicesLimited
The facts of the Murphy case are highly similar to those in the
Gannon case. Ms Murphy operated a pub and screened pro-
grammes featuring Premier League football matches in the
pub during the Saturday afternoon closed period. However
(as with Gannon), the programmes were received from a Greek
broadcaster called NOVA, which had a licence from the UK
Premier League for broadcasts within Greece (see Fig. 1 below).
Ms Murphy had a satellite dish, a decoder box and a NOVA
viewing card that enabled her to receive and view pro-
grammes transmitted by NOVA. Ms Murphy had paid for the
NOVA decoder card. It is understood that the subscription
fee paid by Ms Murphy for the NOVA service was about £800
per year as opposed to £6000 charged by BSkyB.2
For the two matches in question, BSkyB provided the crew on
the ground and filmed the matches and edited the film. The edi-
tedfilmwas then sent toBTTowerfromwhere feedsweresentto
(a) Premier League, which added English commentary and
sent the film to Nova which then added optional Greek
commentary, its own logos and from time to time other
materials such as advertising and
(b) BSkyBwhereadditionalmaterial includingBSkyB’sowncom-
mentary and logo was added and it was uplinked to the Astra
satellite for transmission to BSkyB customers in the UK.
4.1. Sub-section 297(1)
MsMurphy was prosecutedbyMedia ProtectionServicesLimited
(‘‘MPS’’)3 for offences contrary to sub-section 297(1) of the CDPA.
The principle intention of this sub-section appears to
have been to prevent people from devising and using
tion agency, to monitor the use of satellite systems which broadcastPremier League football matches illegally on licensed premises’’.
Fig. 1 – Satellite broadcast footprint.
c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6 183
technologies that circumvent encryption technology so as to
avoid payment of charges. According to Copinger,4 before
the passing of the Cable and Broadcasting Act 1984, the
law was thought to give very limited protection to broad-
casters in relation to such activities and the Government
was concerned that those who were taking a large commer-
cial risk in relation to the provision of cable and satellite
programmes should have the reassurance that a solid legal
framework was in place to prevent people enjoying the ben-
efits of those services without paying for them. However, the
High Court has held that Ms Murphy’s activities, which did
not circumvent any encryption technology and for which
she paid a broadcaster’s licence fee, would also fall within
the provision.
The Court held that the ‘‘programme’’ (i.e. the recorded
football match in question) was the same as that intended
for the UK public through BSkyB’s service and that the addition
of Greek commentary and NOVA’s logo ‘‘did not change the
identity of the programme’’. The ‘‘programme’’ was broadcast
in the UK by BSkyB and Ms Murphy did not pay BSkyB. The
Court held that Ms Murphy was dishonest as she was aware
of BSkyB’s exclusive rights to the programme in the UK and
therefore all of the criteria of section 297(1) were fulfilled.
4 Copinger and Skone James on Copyright (London, Sweet andMaxwell, 2005).
The Court’s ‘‘identity’’ analysis was as follows:
In the present case, the programme in question comprised visuals
and ambient sound transmitted from the ground in the UK, the
broadcasting service being the supply of such programmes for si-
multaneous reception by members of the public in the UK. The
fact that this programme had added to it, first, an English com-
mentary and, second, a Greek commentary and a Greek visual
logo, did not change the identity of the programme as received
by the Appellant.
4.2. Is the Court’s interpretation of sub-section 297(1)correct?
It is unclear as to why the Court chose to conduct an ‘‘iden-
tity’’ analysis to determine what the ‘‘programme’’ was for
the purposes of section 297(1).
Sub-section 299(5) of the CDPA states that ‘‘programme’’
and ‘‘broadcasting’’ in sub-section 297(1) have the same
meaning as in Part I of the CDPA (Copyright). Under Part I of
the CDPA a broadcast is defined as follows:
In this Part a ‘‘broadcast’’ means an electronic transmission of
visual images, sounds or other information which
c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6184
(a) is transmitted for simultaneous reception by members of the
public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person mak-
ing the transmission for presentation to members of the public,
and which is not excepted by sub-section (1A) [which deals with
Internet transmissions]; and references to broadcasting shall be
construed accordingly.
Sub-section 6(4) deals with the place from which a broad-
cast is made and states that
For the purposes of this Part, the place from which a wireless
broadcast is made is the place where, under the control and re-
sponsibility of the person making the broadcast, the pro-
gramme-carrying signals are introduced into an uninterrupted
chain of communication (including, in the case of a satellite
transmission, the chain leading to the satellite and down
towards the earth). [emphasis added]
The defendant wanted to rely upon this wording to al-
low her to argue that the chain of communication from
Premier League to NOVA was an interrupted chain of com-
munication and thus not a broadcasting service provided
from a place in the UK. If the defendant succeeded with
this argument there could be no liability on Ms Murphy
under s297.
The Court held at paragraph 35 of the judgment that the
wording of section 299(5) which requires the meanings of
‘‘programme’’ and ‘‘broadcast’’ in CDPA Part 1 to be imported
into section 297(1) is not wide enough to include sub-section
6(4) ‘‘the place from which a wireless broadcast is made’’ in
considering whether a broadcasting service is provided from
a place in the UK. Sub-sections 6(4), 6(4A), 6(5), 6(5A) and 6(6)
were included as a result of the Satellite Broadcasting
Directive (93/83)5 which relates to the location of a broadcast
for the purposes of subsistence of copyright and the des-
cription of the restricted act. The Court held that this was
not relevant to section 297(1). In other words, it is not neces-
sary for the signals to be introduced into an uninterrupted
chain of communication. Provided the signal received by the
publican originated from a place in the UK, the transmission
will fall within the scope of section 297 even if it has been
interrupted.
The Court’s reasoning is unclear. Sub-sections 6(4)–6(6) do
not appear to contradict section 297(1) or its intended purpose.
Surely if the legislator only wanted sub-sections 6(1) and 6(1A)
to have applied, the legislator would have expressly drafted
section 299(5) in such a way rather than referring broadly to
Part I. The Bolton Crown Court in the Gannon case clearly
took into account sub-section 6(4) in its interpretation of
‘‘broadcast’’, as can be seen in its findings.
It is further surprising that the Court, while finding sub-
sections 6(4)–6(6) not to be relevant, in effect does an analy-
sis which compares the NOVA and BSkyB programmes in
5 Council Directive 93/83/EEC of 27 September 1993 on the coor-dination of certain rules concerning copyright and rights relatedto copyright applicable to satellite broadcasting and cableretransmission.
a way which resembles a copyright infringement ‘‘substan-
tial part’’ analysis.
4.3. Relevance of sub-section 6(3)
On the basis that the Court is correct to ignore sub-sections
6(4)–6(6), unlike sub-sections 6(4)–6(6), sub-section 6(3) was
not implemented as a result of the Satellite Broadcasting
Directive (93/83) and therefore should be relevant (even under
the Court’s reasoning).
Sub-section 6(3) is important for two main reasons. First, it
defines what a ‘‘programme’’ is. Second, it relates to the per-
son making a broadcast. Despite its significance, surprisingly
there is no reference at all in the judgment to this sub-section.
The sub-section reads as follows:
References in this Part to the person making a broadcast or
a transmission which is a broadcast are
(a) to the person transmitting the programme, if he has responsi-
bility to any extent for its contents and
(b) to any person providing the programme who makes with the
person transmitting it the arrangements necessary for its
transmission;
and references in this Part to a programme, in the context of
broadcasting, are to any item included in a broadcast.
4.4. Meaning of ‘programme’
A ‘‘programme’’ under sub-section 297(1) (and sub-section
299(5)) means any item included in a broadcast. In other
words, if there is a broadcast, then whatever item is included
in that broadcast is a ‘‘programme’’ for the purposes of sub-
section 297(1).
Rather than attempting an ‘‘identity analysis’’, what the
Court perhaps should have done is focus on what was the
‘‘broadcast’’ received by Ms Murphy which should then auto-
matically determine the ‘‘item’’ included in the broadcast.
One could then simply assess whether the NOVA ‘‘broadcast’’
(and in turn, the ‘‘programme’’) is the same thing as the BSkyB
‘‘broadcast’’ (and in turn, the BSkyB programme).
4.5. Person making a broadcast
If sub-sections 6(4)–6(6) (which includes the ‘‘uninterrupted
chainofcommunication’’ test for theplacefromwhichabroad-
cast is made) are to be ignored for the purposes of s297(1) there
is little indication as to whether the broadcast received by Ms
Murphy was a broadcast from the UK or not. Sub-section 6(3)
provides some guidance as to the place of the broadcast.
Sub-section 6(3)(a) (above) defines a person making
a broadcast as ‘‘the person transmitting the programme, if
he has responsibility to any extent for its contents’’. So, did
BSkyB have responsibility for the content of the transmission
from the NOVA satellite to its subscribers in Greece (including
Ms Murphy) and make arrangements necessary for its trans-
mission? The answer would seem to be ‘‘no’’. For example,
if one of the Greek commentators made a defamatory com-
ment, this would not be BSkyB’s responsibility. The same
6 Section 19: infringement by showing the work in public.7 Section 26: provision of apparatus for infringing performance,
etc.
c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6 185
would apply to the advertising used by NOVA, which would
not be BSkyB’s responsibility. Arguably therefore the person
making the broadcast received by Ms Murphy was NOVA
and the programme included in that broadcast was a separate
programme than that included in the BSkyB transmission.
The Court points out that both the Premier League and
BSkyB are the broadcaster and have ‘‘editorial responsibility
for the composition of the schedules of televisions
programmes’’ so far as the transmitted match is concerned.
However, it is not necessarily the ‘‘transmitted match’’ that
constitutes the broadcast programme and surely this comment
can only correspond to the UK content, which was not received
by Ms Murphy. The Court’s limitation of ‘‘responsibility’’ to
‘‘editorial responsibility for the composition of the schedules
of television programmes’’ is taking selective wording from
Directive 89/552/EEC and its definition for ‘‘broadcaster’’.
The definition goes on to state ‘‘. and who transmits them
or has them transmitted to third parties’’. As the facts suggest,
the transmission received by Ms Murphy originated from
NOVA and not the Premier League or BSkyB.
4.6. Decision in Murphy
The device used by Ms Murphy was not a circumvention de-
vice. It did not allow Ms Murphy to decrypt the BSkyB trans-
mission for viewing. It simply allowed Ms Murphy to decrypt
NOVA’s transmission, for which a licence fee was paid. There-
fore, Ms Murphy’s actions are not actions which the section
was originally intended to capture. The decision of a High
Court on this point was therefore eagerly anticipated. How-
ever, the Court’s reasoning for finding Ms Murphy liable under
section 297(1) appears to have been based on an interpretation
of the CDPA which ignores several of the sections (on the need
for the transmission to be uninterrupted) on which previous
decisions have turned. The Court has decided that the feed
of the live transmission of the football match received by Ms
Murphy was, despite the addition of a Greek commentary
and logo, essentially the same programme as that broadcast
by BSkyB. The filming and editing are the same and the addi-
tion of a Greek commentary and logo has not changed the
‘identity’ of the programme.
It is unclear from the facts of the case as to how Ms Murphy
came to possess the NOVA device, however, it appears that Ms
Murphy was provided the device through legitimate channels
and paid the appropriate fees. The Court does not refer to the R
v. Ghosh test, but stated that it was significant that Ms Murphy
did not appeal against the finding of dishonesty, which ‘‘im-
plied an intent to avoid a payment understood by her to be law-
fully due’’. It could be argued, however, that Ms Murphy should
not be considered to be dishonest in purchasing her equip-
ment from a foreign broadcaster given the European Commu-
nity aim of not having national boundaries across Europe.
The Court had reservations about competition issues. Al-
though the Court states that the English provisions are consis-
tent with the EC legislation, and the rights are essentially
territorial in nature, the Court stated ‘‘it is unclear to us how
there can be a relevant free movement case’’. However, the
Court then concludes that ‘‘So far as the competition law
case is concerned, we do not at present follow how it is to be
developed, and this appeal must therefore be restored for
these points to be argued if that is what the Appellant (i.e.
Ms Murphy) wants’’.
5. Alternative approaches for broadcasters
In both the Gannon case and the Murphy case, the complain-
ants appear only to have pursued the publicans for the offence
of fraudulently receiving programmes under sub-section
297(1).
However, under the CDPA, broadcasters have a combina-
tion of various other criminal and civil remedies available.
These include
(a) A copyright infringement action, pursuant to section 196
(for playing or showing the copyright work in public) and
secondary infringement under s.267 (for giving permission
for the apparatus to show the broadcast to be brought onto
the premises).
(b) If a person uses, makes, sells or imports an unauthorised
decoder to decode the broadcaster’s signal, then there
are criminal remedies such as under section 297A. We ad-
dress issues of unauthorised decoders in more detail
below.
(c) Action against suppliers of unauthorised decoders pur-
suant to section 298. This is also discussed in more detail
below.
These sections would have been available to Premier
League prior to the decision in Murphy. However, the Murphy
decision, in finding the transmission received by Murphy to
be the BSkyB transmission, allows Premier league to argue
much more strongly that the following provisions relating
to copyright infringement and dealings with decoders used
to de-encrypt the transmission from Greece are open to
them in situations such as those in the cases of Gannon and
Murphy.
5.1. Unauthorised decoders
Under section 297A (unauthorised decoders) it is a criminal of-
fence to make, import, distribute, sell or carry out a range of
commercial activities (e.g. advertising) in relation to any
‘‘unauthorised decoder’’ or to be in possession of an unau-
thorised decoder for commercial purposes. A decoder is any
apparatus which is designed or adapted to enable an encryp-
ted transmission to be decoded and ‘‘unauthorised’’ means
the decoder is designed or adapted to enable an encrypted
transmission to be accessed in an intelligible form without
payment of the fee which the person making the transmission
charges for accessing the transmission.
The offence of fraudulently receiving programmes under
section 297(1) only applies where the broadcast is provided
from a place in the UK. In contrast, a transmission under sec-
tion 297A is any programme included in a broadcasting ser-
vice which is provided from a place in the UK or any other
c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 1 8 1 – 1 8 6186
member states. The case of R v. Mainwaring8 has helpfully clar-
ified that the section therefore extends protection for broad-
casters’ transmissions outside the territory in which the
broadcast originated. In R v. Mainwaring criminal proceedings
were brought against the defendant for (i) selling an unauthor-
ised decoder and (ii) advertising an unauthorised decoder for
sale, contrary to section 297A CDPA. A Dutch satellite televi-
sion broadcaster (Canal Plus) brought proceedings against
the UK based defendant in relation to advertising and selling
a decoder designed to enable the Canal Plus transmission to
be accessed in the UK without payment of a fee.
The defendant in R v. Mainwaring argued that the decoders
were not ‘‘unauthorised’’ since Canal Plus did not seek to
charge a fee in the UK, nor was it licensed to do so. The Court
held that the defendant’s limited interpretation of section
297A was incorrect. The fact that no fee was asked for by
the broadcaster because the transmission was to be accessed
where the broadcaster had no right to broadcast was
irrelevant to the question of whether the decoder was
unauthorised.
Therefore, this section provides a broad remedy for broad-
casters in relation to importers, sellers and distributors of de-
coders designed to decode a transmission without payment of
the appropriate fee, whether that transmission is being
decoded in the territory in which the transmission originated
or any other territories within the EEA.
As with section 297, it is a defence to any prosecution for an
offence under section 297A for the defendant to prove that he
did not know, and had no reasonable ground for believing that
the decoder was an unauthorised decoder.
5.2. Actions against suppliers of unauthorised decoders
Broadcasters can also bring civil proceedings against the sup-
pliers of unauthorised decoders to publicans. Under section
298 (rights and remedies in respect of apparatus for unauthor-
ised reception of transmissions), broadcasters have the same
rights and remedies as a copyright owner has in respect of an
infringement of copyright against a person who makes, im-
ports, distributes, sells, offers or exposes for sale or advertises
for sale any apparatus designed (or adapted) to enable persons
to access programmes or transmissions when they are not en-
titled to do so. As with section 297A, the section applies to
transmissions both from the UK and from any other member
states. The broadcaster (whether UK or European) has the
right to damages, an injunction and in particular an order
for delivery up or seizure of offending items. However, no
award of damages will be made in the case of innocent in-
fringement (i.e. if the defendant can show that he did not
know or had reason to believe that his act infringed the rights
conferred by section 298).
8 R v. Mainwairing [2002] F.S.R. 20.
The Premier League is, at the time of writing, in the High
Court in an action against QC Leisure and others for breaches
of copyright under section 298 CDPA (civil remedies in relation
to unauthorised reception of transmissions as commented on
above). Interestingly the defendant has argued, in its defence,
that the Premier League’s licences with foreign broadcasters
(which contains a prohibition on foreign broadcasters permit-
ting anyone from viewing the transmission outside the terri-
tory for which they are licensed) is based on concerted
practices and has the effect of preventing, restricting or dis-
torting competition in the market, contrary to Article 81 of
the EC Treaty. The Premier League has lost9 a summary judg-
ment application in which Premier League failed to demon-
strate that the defendant’s defence under Article 81 did not
have a reasonable prospect of success at trial.
6. Conclusion
A High Court authority on this complicated area of the CDPA is
helpful in clarifying the legality of pub landlords’ activities in
relation to receiving foreign broadcasts. The decision in Mur-
phy has, for the time being, provided certainty that these activ-
ities will fall within the remit of section 297 CDPA and this will
make it easier for BSkyB and the Premier League to continue to
enforce their rights in this area against pub landlords, both
under section 297 and the sections relating to dealings with
unauthorised decoders.
At the time of writing it is not known whether Ms Murphy
will appeal the decision and it will be interesting to see
whether she does decide to appeal on the Court’s interpreta-
tion of section 297 or in relation to the competition aspects
of the case. The decision in Premier League v. QC Leisure and
others will also be helpful in determining whether the territo-
rial aspect of access to and payment for receipt of the broad-
casts of live football matches will be found to be anti-
competitive. Any decision will have a major impact on the
funding of Premier League football.
The cases considered in this article also reflect the issues
arising from UK publicans receiving transmissions from
European broadcasters. Where the transmissions in ques-
tions are Internet broadcasts or transmissions outside the
EEA, from China for example, the position is more compli-
cated and it appears there are gaps in the UK legislation
which warrant a review of the legislation on this area by
Parliament.
Penelope Thornton ([email protected]), Associate,
Lovells IPMT Department, London, UK and Kensaku Takase
([email protected]), Senior Associate, Lovells IPMT
Department, Tokyo, Japan.
9 The Football Association Premier League Ltd v. QC Leisure andothers [2008] All ER (D) 78 (Jan).
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