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Off topic but for those of you who own pubs, here is an interesting case on the broadcasting of live football matches by foreign countries where the transmitted signal is decoded and viewed in practical real time.
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GANNON V FEDERATION AGAINST COPYRIGHT THEFT
BOLTON CROWN COURT
HIS HONOUR JUDGE WARNOCK, JUSTICES
24 MARCH 2006
Licensed premises – Broadcast of live Premiership football – Satellite transmissions – Payment of licence charges – Copyright, Designs and Patents Act 1988
Mr Brian Gannon the licensee of the Fisherman's Inn public house in Rochdale appealed against his conviction by Rochdale Magistrates' Court for an offence of dishonestly receiving a programme included in a broadcasting service provided from a place in the UK with intent to avoid any payment of any charge applicable to the reception of the programme. It was alleged against Mr Gannon that by use of a decoder and encryption cards, purchased in August 2003, he had shown live television coverage in his premises of the Premier League game between Chelsea and Birmingham City on the afternoon of Saturday 21 August 2004. The satellite broadcast he had received had been from Greece. The Union of European Football Associations (UEFA) through the Football Association (FA) and the FA Barclay's Premiership (FAPL) purported to control the licensing of live football broadcasts. They did so through a 'closed period' between 2.45 pm and 5.15 pm on Saturday afternoons, the grant of licences (in the UK to the BBC and BskyB), and the circumscription of licences granted to those outside the UK to prohibit broadcasts being received within the UK. A representative of the Federation Against Copyright Theft (FACT) had visited Mr Gannon on 12 July 2004, and presented to him a document headed 'Legal Advice' in which the view was expressed that receipt of the signal from Greece was unlawful. Mr Gannon said that he had not taken notice of the document because the representative had not been able to provide any proof of identification. He had believed that he had bought a legitimate decoding system for which he had paid £ 1,756.63 and a further payment of £ 1,116.25 a year later. He also argued that the broadcast concerned was from Greece and not the UK.
Held - allowing the appeal -
(1) The court was not satisfied on the facts that Mr Gannon had acted dishonestly. It was not proved that Mr Gannon would have realised that what he was doing was wrong and would be regarded as dishonest by the ordinary standards of reasonable and honest people.
(2) It had not been proved that the signal that emanated in the UK was a broadcast and/or a broadcasting service. The broadcast had been sent by way of an encrypted multipoint transmission to the subsequent broadcasters out of the jurisdiction and was not broadcast to customers as such.
(3) The court was not satisfied that the signal was uninterrupted from its point of transmission in the UK to its eventual destination at the Fisherman's Inn public house in Rochdale. It was in effect a retransmission from Greece and not, therefore, a broadcast within the specific meaning provided by the Copyright Designs and Patents Act 1988.
(4) There had been an unlawful use of and interference with UEFA's and FAPL's intellectual property rights in the broadcast of the match but such an offence, if it existed, had not been charged against Mr Gannon.
(5) There was no evidence of any actual charge to an individual for receipt of such a broadcast and so the avoidance of such a charge had not been established.
Statutory provisions considered
Copyright Designs and Patents Act 1988, ss 6, 297(1), 297A(4), 299(1)(a), (b)
Cases referred to
R v Ghosh [1982] QB 1053, [1982] 3 WLR 110, [1982] 2 All ER 689, 75 Cr App Rep 154, CA
Timothy King for the appellant; Lynn Griffin for the respondent
Molesworths Bright Clegg for the appellant.
Cur adv vult
24 March 2006
HIS HONOUR JUDGE WARNOCK
This is the unanimous decision of the court which comprises of myself and two lay justices namely Mr George Howarth JP and Mr Christopher Parbery JP.
We have taken time to consider our decision and have been assisted by the unavoidable delay between the hearing of the evidence and the bulk of counsels' submissions.
We are concerned with an appeal by a Mr Brian Gannon from his conviction and sentence on the 26 April 2005 by the Rochdale Magistrates for an offence contrary to s 297(1) of the Copyright Designs and Patents Act 1988 (the Act).
The prosecution, and now respondent to this appeal, is the Federation against Copyright Theft (FACT) and is represented by Miss Griffin of counsel. Mr King QC represents the appellant.
We are required to set out our reasons for our decision and we now take this opportunity to do so.
Section 297(1) of the Act states as follows:
'A person who dishonestly receives a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid any payment of any charge applicable to the reception of the programme commits an offence ...'
The definition of 'broadcast' can be found at s 6 of the Act.
We have heard over 2 court days the oral evidence and submissions of the following:
(1) Ms Francis McKeown - an investigator employed by FACT.
(2) Mr Simon Johnston - present Director of the Football Association Premier League.
(3) Mr Malcolm Smalley - an expert in signal transmissions currently i/c technical operations at Sky TV. And formerly head of satellite broadcasting for BSkyB.
(4) Mr Brian Gannon - the appellant.
(5) Mr Buckley - the proprietor of KDS and supplier of equipment to the Fisherman's Inn public house.
(6) Mr Joe Ibrahim - importer of equipment and holder of the terms and conditions of the Greek licensee as set out below.
(7) Mr David Brain - another expert in the transmission of signals to and from satellites, with significant past experience in space satellite technology.
In addition, both counsel have provided the court with detailed written skeleton arguments and oral submissions. We are particularly grateful to both of them.
The factual background
At all material times the appellant was the proprietor and licensee of the Fisherman's Inn - a public house in Rochdale. Prior to 2001 he had worked in a bank and had also been a theatrical agent.
This public house, for which he was responsible at the relevant time, had a substantial turnover in the region of half a million pounds pa. On Saturday, 21 August 2004, 30 or so of his customers were able to watch a 'live' Premier League Association football match between Chelsea and Birmingham City Football Clubs on one large screen and four TV's placed around his establishment. They were able to do this because on 8 August 2003 the appellant had purchased for £ 1,756.63 a decoder and enabling card from a company called KDS, under the control and direction of a Mr Buckley. This equipment received the satellite signal from a Greek broadcast that in turn had originated from the UK.
The contractual chain of supply of this equipment, known as a 'Nova' satellite system, apparently originates in Cyprus with a Mr Christou Christo who sold to a Mr Theo Nikolau who sold to an importer, the said Mr Joe Ibrahim who, in turn, supplied it to Mr Buckley.
The intellectual property rights in the original transmission are vested, we are told, in the Union of European Football Associations (UEFA), who through the Football Association Premier League, marketed as 'the FA Barclay's Premiership' (FAPL) in this jurisdiction purport to control the licensing and use of same in three distinct ways.
First, there is what is called 'a closed period' between 2.45 pm and 5.15 pm on Saturday afternoons when no live transmissions of FAPL matches are permitted - a prohibition clearly intended to protect match attendance figures. Secondly, there is strict control over which organisations are granted licences. In the UK we understand recipients of such licences to be currently restricted to the BBC and BSkyB TV. It is perhaps trite to observe that the cost of such licences; even if they were available, which they most certainly are not; would run into many millions of pounds and are clearly not within the financial reach of individuals but rather substantial, multi-national corporations. Thirdly, such licences as are granted to broadcasters outside of the UK are, not surprisingly, heavily circumscribed with terms and conditions, including the express prohibition against knowingly causing or permitting the broadcast of the received broadcast outside of its own jurisdiction.
Control of such a valuable asset, assisted by encryption and the like, is obviously a prime and necessary commercial consideration for its owners. The images seen by the customers of the Fisherman's Inn public house in Rochdale were, and are, identical to that which would have been observed on terrestrial television, had such been available, save that there is an approximate delay of some 2 seconds between the actual happening of the event in what is called 'real time' and the received transmission. Also, the Greek recipient of the original signal from the UK has added its own logo in the top left hand corner of the screen. We are told that FACT, acting on behalf of FAPL, have commenced numerous prosecutions against landlords and others within this jurisdiction and that the decision of this court is awaited with considerable interest.
The apparent financial implications of the outcome of this hearing, we are told, are potentially great, combining as it does the provision of live football on screen and the personal and financial interests of the licensed victuallers trade - both representing preoccupations of a substantial proportion of the British paying public.
The law
We remind ourselves that this is a 'de novo' criminal hearing and that the burden is upon the prosecution to establish its case so that we are sure of the appellant's guilt.
We have been helpfully reminded of the leading authority of R v Ghosh [1982] QB 1053, and the two-stage test therein, in determining the issue of the alleged 'dishonesty' of the appellant.
Of necessity, we have had to interpret that which the terms of the relevant section actually mean. Where there has been a reasonable doubt we have construed same in favour of the appellant.
The exhibits
These form an important part of the case and are as follows:
R 1 Legal Advice Note.
R 2 Signed receipt of notice 12 July 2004.
A1 Statement of Francis McKeown dated 4 September 2004.
A2 Bundle of enumerated documents.
A3 Photo renewal card.
A3 Photo renewal card.
The lay, oral evidence before the court
Ms McKeown told us that she visited the Fisherman's Inn on 12 July 2004, some 40 days prior to the alleged offence. She noted the apparent use of the equipment mentioned and thereafter spoke to the appellant. She handed him exhibit R 1 namely the 'Legal Advice' document and obtained his signature to the document exhibit R 2. Clearly it was her intention to inform the appellant of her view, expressed on behalf of FACT, that the reception of the signal was unlawful and as such could have adverse personal consequences for him. We return to the document headed 'Legal Advice' exhibit No R 1 in due course. The meeting between her and Mr Gannon was clearly not a happy one and we note her description of 'a bitof a wrangle' occurring between them.
Mr Johnston explained the control mechanisms exerted by FAPL to try and protect its intellectual property in the broadcasts. He also explained the somewhat tortuous route taken by the transmission signal from the football ground to the public house and which can be seen in agreed diagrammatic form at p 22 in the appeal bundle. He added, perhaps unnecessarily, that the appellant had not approached FAPL to purchase the rights to receive the transmission signal prior to the 21 August 2004. The contractual position between licensor and licensees is further clarified by the unchallenged statement of Mr Oliver Weingarten referred to by Mr King in para 9 of his skeleton argument which can be found at p 6 in the appeal bundle.
Mr Gannon told us that he was no dishonest and although he had signed the document at RE, he had not taken much notice of what was said to him by Ms McKeown on 12 July 2004 - not least because she had, rather surprisingly he thought, not been able to provide any means of identifying herself. His initial belief was that she was some sort of sales person for Sky Television. In any event, he told us he thought that he was buying a legitimate decoding system and that he had made a good deal with KDS. He denied that he intended to avoid any payment of any charge, not least because he was not aware of what was the payment or charge alleged or sought by FACT on behalf of FAPL.
By reference to the copy invoices in the bundle, he demonstrated that he had paid the initial sum of £ 1,756.63 for the equipment and enabling cards as set out at pp 5-8 inclusive in the appellant's document bundle. It also being of note that Mr Gannon renewed his subscription to the service supplied by KDS after, and apparently notwithstanding, Ms McKeown's visit on 12 July 2004 with a further payment of some £ 1,116.25 on or about 6 August 2004. Of course we bear in mind that although the size of the payments to KDS are significant they have to be considered in the commercial context of a busy public house with presumably, an increased turnover because of the provision of live TV football.
Mr Buckley and Mr Ibrahim filled in the links in the chain of supply from Cyprus, indicating the respective prices charged and paid. Mr Buckley made it clear that he ceased trading in the equipment when he realised that allegations were being made as to the lawfulness of its use. Mr Ibrahim had no such compunction, expressing the forceful view that the use of the items he imported was lawful. He also confirmed that although he had the terms of the licence issued from the UK, but seeing it was in Greek, he does not understand a word of it.
The expert evidence
Both Mr Smalle y and Mr Brain were highly impressive, experienced and well qualified expert witnesses. Each has provided a written report for the court which we have read. The reports are at pp 19-34 in the bundle. There was general agreement between them save as to the discrete issues of whether or not the signal was interrupted and/or that which emanated from the UK was a broadcast given its 'point to multipoint' nature and/or that which came from Greece into the UK was a retransmission and therefore not a broadcast within the term of the Act.
Irrespective of these differences, both were agreed that someone in the chain of satellite communication from football ground to public house was and is in breach of their contractual obligations to those who granted the initial licence.
The 'charge'
The section refers to avoidance of a 'charge'. It is common ground that the rights to this 'live' broadcast in the UK were not for sale. Even if the appellant had asked, no price or charge would be considered or offered by UEFA, FA or FAPL. The 'charge' does not exist. The rhetorical question put by Mr King as to 'how does one seek to avoid something that does not exist?' is, in our view, well merited. Miss Griffiths has submitted that we could infer the fact of awareness of a 'charge' by reference to the probable knowledge of the appellant about charges made by BSkyB, for transmissions of football matches outside the 'closed period'. Clearly, that is not the highpoint of this prosecution's case.
Counsels' submissions
As already indicated, these have been set out in writing by both counsel and we have read them, but they have expanded and changed slightly during the course of the hearing.
On behalf of FACT, and the prosecution, Miss Griffin submits, inter alia:
(a) The prosecution need establish the fact of a 'broadcasting service' rather than 'broadcast' as per ss 297 and 6 of the Act.
(b) The broadcast was virtually continuous and uninterrupted.
(c) There was a 'broadcast' from the UK.
(d) The appellant was dishonest in light of-
(i) The legal notice
(ii) There was no contract with Nova - the Greek broadcaster.
(iii) The amount paid was significantly low.
(iv) He must have known he could not buy the right to show live TV football during the closed period either from FAPL or others.
(e) The 'charge' was that which FAPL would have demanded had they chosen to negotiate with the appellant for the rights to show the live TV.
On behalf of the appellant Mr King submits, inter alia:
(I) The appellant was not dishonest.
(II) Breach of copyright is not a criminal offence.
(III) There was no financial 'charge' that could be 'avoided'.
(IV) There was no 'broadcast' from the UK within the meaning of s 6 and s 297 of the Act. There was a broadcast from Greece.
(V) Even if it were a 'broadcast' as required, it was not 'uninterrupted' as further required by the Act.
(VI) The Nova decoder was not 'unauthorised' per s 297A(4) of the Act.
Findings and verdict of the court
In the context of the burden and criminal standard of proof we find as follows:
(1) We are not sufficiently satisfied so that we are sure that the appellant acted dishonestly. Applying the initial objective test, we find that by the ordinary standards of reasonable and honest people the appellant did act dishonestly but we are not satisfied so that we are sure that the appellant himself must have realised that what he was doing would be regarded as dishonest by those standards.
Specifically, we do not regard the document relied upon by the respondent and headed 'Legal Advice' as helpful, clear or correct. In its present form and in our judgment it did not sufficiently fix the appellant with the subjective knowledge relied upon by FACT. It is a rather curious document that draws upon the Act for its content but mixes civil and criminal terminology and sanctions and, at one point, even purports to refer to a criminal offence that does not exist. If it was really meant to be 'Legal Advice', it was not very good legal advice. Thus, even if the appellant was, viewed objectively, dishonest we are of the view that the second and subjective limb of Ghosh is not made out. While it is true we have our doubts that, to borrow a phrase from another jurisdiction, the appellant was a 'bona fide purchaser for value' of the decoder and card 'without notice' of some concern as to the lawfulness of its consequent use, but that is far from achieving the criminal standard of proof required for the essential mens rea of this offence. Further, we simply reject the bold and startling assertion made in evidence that all landlords are, to a greater or lesser extent, dishonest.
(2) Our finding as to the absence of dishonesty is sufficient to dispose of this appeal and to set aside the appellant's conviction and sentence. However in deference to the submissions made by both counsel we indicate, by the way, the following:
(a) We are not satisfied so we are sure that the signal that emanated from the UK was a 'broadcast' and/or a 'broadcasting service' within the meaning of the Act and in particular s 6(1) and s 297 thereof. The broadcast that went by way of encrypted multipoint transmission to the subsequent broadcasters out of the jurisdiction was not, in our view, a broadcast to customers as such.
(b) We are not satisfied so that we are sure that the signal was uninterrupted from its point of origin in the UK to its eventual destination at the Fisherman's Inn public house at Rochdale.
(c) We are not satisfied so that we are sure that that which was received by the decoder at the public house was not in effect a retransmission from Greece and therefore not a broadcast within the specific meaning provided by the Act although we doubt the significance of such a finding given the potential effect of the provisions of s 299(1)(a) and (b) of the Act and the rights and remedies that section could provide.
(d) Insofar as it is relevant to the criminal charge faced by the appellant, we are satisfied so that we are sure that there has been an unlawful use of, and interference with, UEFA's and FAPL's intellectual property rights in the broadcast of the match. However, even if such a criminal offence exists at law, it is not alleged against this appellant.
(e) We are not satisfied so that we are sure that FACT have established the 'intent to avoid payment of any "charge" applicable to the reception of the programme' on the basis that there is no or, alternatively, insufficient, evidence before us of any actual 'charge'.
Forum
We wish to add a final observation. We doubt that Bolton Crown Court, sitting at Bury in its criminal appellate jurisdiction, is the appropriate forum for the determination of the central issues that have been argued so ably in this case not least because of the limited availability of appeal against what are, in effect, findings of fact rather than law. We agree with Mr King that such issues would probably be best determined in either the Chancery Division of the High Court or, possibly, the Technology and Construction Court. Further, while we are aware that there are many similar cases to this one awaiting determination by the Crown Court in its appellate jurisdiction, we do not believe that our findings in this case can be anything more than mildly persuasive given their origin and natural dependence on the particular facts presented to us. We are grateful to both counsel and independent witnesses who have worked so hard to assist us.
Accordingly we allow this appeal and set aside the conviction and sentence in the court below. Approved transcripts of this decision can be made available on email. We will hear any applications for costs.
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FAQ
This is how some company's have avoided prosecution. Where a licensing area will not license limousines they can't then prosecute the operator for not having a license.
