Recent cases where proprietors have tried to find ways around buying a licence have seen a swift response from the Premier League, says Nick Fenner
The landlord of a sports bar has just received his Sky or BT Sports annual renewal notice for his commercial licence. Across the road a social club is screening live Premiership football, which appears to originate from a foreign channel. Not only is the social club paying less, it is also screening matches during the closed period on Saturday.
The law Showing live Premiership football broadcasts other than with a Sky or BT Sports subscription can be both a criminal offence and a civil liability for copyright infringement. So what does this mean?
It is a criminal offence to receive a programme from a TV channel in the UK with the dishonest intent to avoid payment of a charge applicable to the reception of a programme.
By way of example, this was the basis for the criminal charge brought against Portsmouth landlady Karen Murphy. However, the charges were set aside when the court established that she had not acted dishonestly because she had used a genuine decoder card purchased in Greece to receive and screen the Greek football broadcast in her pub.
In another recent case, a landlord who showed FA Premier League games using a foreign decoder was found by the court to have infringed copyright in certain materials belonging to the Premier League. This was specifically the opening sequence, the logo, the anthem and certain graphics, but not the game itself. The infringement of the rights in the material allowed the Premier League to prevent the showing of the programme.
Expert advice Whether the social club is committing a criminal offence will depend on how they are receiving the broadcast. If they are using a genuine foreign decoder purchased in the EU, the landlord may have the ‘Karen Murphy' defence to any criminal prosecution alleging dishonesty.
Even where this defence applies in respect of criminal prosecution, the showing of live Premier League matches can still amount to copyright infringement. This will allow the Premier League to threaten civil action unless the premises stops showing the broadcasts.
The suppliers of systems offering access to live sports have used the publicity surrounding the Karen Murphy decision in their marketing. This promotional material suggests that their systems are legal on the basis there is a defence to criminal prosecution available. However, those suppliers generally will skirt around the issue of civil liability for copyright infringement.
In addition, not all the systems will qualify for this defence. There are systems in the market that claim to filter out the Premier League copyright material, on which a civil claim for copyright infringement would be based. The effectiveness of these systems is untested in the courts.
Checklist Premises operators who show live football without a commercial subscription to Sky or BT Sports should take steps to ensure that they are not breaking the law.
These include avoiding using:
• decoders supplied for domestic household purposes;
• hacked or stolen decoders;
• internet sites offering streamed live football; and
• decoders receiving broadcasts originating from outside the EU.
Beware Anyone using a system that would potentially qualify them for a defence to criminal prosecution still needs to take into account copyright infringement. A check should be made of what recourse, if any, they have against the supplier. The supplier's terms generally disclaim all responsibility, even for those systems claiming to be 100% legal.
Beware Use of illegal systems can result in a criminal conviction with fines and costs of £5,000 per offence. A recent case saw fines and costs totalling £9,000. Civil liability is additional to a criminal conviction and damages and costs can be awarded along with an injunction.
Contact Nick Fenner is a partner at TLT Solicitors