Murphy v Media Protection Services Ltd

Factual and Procedural Background

The Appellant was convicted by Portsmouth Magistrates of two offences under Section 297(1) of the Copyright Design and Patents Act 1988 for dishonestly receiving a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme on two dates in 2006. The Premier League owns intellectual property rights for live football match broadcasts and grants exclusive licenses to licensees in their territories: BSkyB in the United Kingdom and Ireland, and NOVA in Greece. The Appellant received programmes via a NOVA satellite decoder card, which was authorized for use only in Greece but was used in the United Kingdom at the Appellant’s public house. The Appellant did not have a BSkyB subscription at the time.

The Appellant’s appeal against conviction was dismissed by the Crown Court but a case was stated for the High Court to consider specific legal questions, including whether the intent to avoid payment applied where the Appellant paid a charge to a foreign broadcaster’s licensee but not to the domestic broadcaster. The High Court answered the domestic law questions adversely to the Appellant but left European Union law questions open. The Appellant pursued those EU law issues, leading to a referral to the Court of Justice of the European Union (CJEU) for a preliminary ruling on several questions of EU law concerning the legality of using foreign decoder cards outside their licensed territory.

The CJEU ruled that foreign decoding devices authorized by the foreign broadcaster but used outside their licensed geographical area are not illicit devices under EU law and that territorial restrictions on such devices are unlawful under Article 56 TFEU. Consequently, the Appellant’s use of the NOVA cards in the United Kingdom could not lawfully be prosecuted under Section 297(1) of the Copyright Design and Patents Act 1988.

Legal Issues Presented

1. Whether the intent to avoid payment under Section 297(1) applies where the Appellant paid a charge to a foreign broadcaster’s licensee but did not pay a fee to the domestic broadcaster.
2. Whether foreign decoding devices authorized by a broadcaster but used outside their licensed territory constitute illicit devices under EU Directive 98/84/EC.
3. Whether territorial restrictions on the use of foreign decoding devices are lawful under Article 56 TFEU.
4. Whether exclusive licence agreements imposing territorial restrictions on decoding devices constitute a restriction of competition prohibited by Article 101 of the Treaty.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by summarizing the factual matrix regarding the Appellant’s use of a foreign-authorized decoder card outside its licensed territory and the resulting convictions under domestic law. It noted that the domestic law questions had been answered adversely to the Appellant but did not address EU law issues, which were referred to the CJEU. The CJEU’s ruling clarified that devices authorized by a foreign broadcaster but used outside the licensed territory do not constitute illicit devices under Directive 98/84/EC. Furthermore, the court emphasized that Article 56 TFEU precludes national laws that prohibit the import, sale, and use of such foreign decoding devices, even if procured through circumvention of territorial restrictions or used commercially despite contractual limitations to private use. The court concluded that the territorial restrictions imposed by exclusive license agreements violate Article 101 TFEU as anti-competitive. Applying these principles, the court held that the Appellant’s convictions under Section 297(1) could not stand because the Appellant had paid for the decoder card and had not acted dishonestly or avoided payment. The court clarified that its decision does not affect laws concerning counterfeit or stolen cards or illicit devices under Directive 98/84/EC, nor does it address devices originating outside the EU.

Holding and Implications

The Appellant’s convictions under Section 297(1) of the Copyright Design and Patents Act 1988 are quashed.

The court held that the use of foreign-authorized decoder cards outside their licensed territory does not constitute an offence under domestic law when assessed in light of EU law, specifically Article 56 TFEU and Directive 98/84/EC as interpreted by the CJEU. The territorial restrictions on the use of such devices are unlawful and constitute anti-competitive practices under Article 101 TFEU. The direct effect of this ruling is to allow the Appellant’s appeal and overturn the convictions. The judgment does not establish new precedent beyond the application of existing EU law principles, nor does it affect prosecutions involving counterfeit or illicit devices. No broader implications beyond the parties involved are discussed.