satellite rights and wrongs

Satellite Rights & Wrongs

Satellite Broadcast Rights& WrongsPaul Taylor(Strictly neutral)

NotesOrchard Brayton Graham LLP

ProgrammeThe ProblemThe PlayersThe OfficialsThe Game so farThe Laws of the GameView from the Terraces View from the OfficialsIf you don't believe you can win, there is no point in getting out of bed at the end of the day."


The Problem

The Problem

The Problem

The Problem

The Problem

The Problem

The Problem

The Problem

The Problem

Fixture ListRights Holders-v-ViewersPublic (TSO)-v-Private (Publicans)European Commission-v-HM GovernmentBroadcaster-v-BroadcasterCivil-v-CriminalFACT-v-Brian GannonMedia Protection Service-v-Karen MurphyFAPL-v-DistributorsOK we lost but good things came from it negative and positive."


The PlayersI would have to be deaf not to read the allegations."Police

Trading StandardsFACTFAPLBSkyBUEFA

MPS


The PlayersIf you stand still, theres only one way to go ... and thats backwards."

Local ViewersExPatsPublicansDigibox ManufacturersForeign BroadcastersDigiBox ResellersDefence Lawyers


The OfficialsYou weigh up the pros and cons and try to put them in chronological order."JudiciaryLegislatorsRegulators


The VenuesMagistrates Courts (Nationwide)Crown Court (Bolton)High Court of Justice (London)Court of Justice of the European UnionThis tie is a potential potato skin."


The Game so FarCopyright in the gameOwned by FAPL \ Football League \ UEFAThe broadcast rights are sold by auction on a territorial basisProgramme copyright \ broadcast rightsLicensed by contractRestrictions on encryption, sale of decoder boxes, channel subscriptionsRe transmission rightsUEFA closed periods (UK: 3-5 most Saturday afternoons)If history is going to repeat itself I think we can expect the same thing again."


The Game so FarLegalCPDACriminal proceedingsCivil proceedingsTechnicalEncryptionLow powered satellitesCommercialContractualI would not be bothered if we lost every game so long as we win the league."


The Game so FarI am as happy as I can be but I have been happier."

Visits to the PubMPS \ TSO \ PoliceFACT ProsecutionsMPS ProsecutionsFAPL Enforcement action


Criminal Proceedings


Brian Gannon v- FACTNo finding of dishonestyTransmission was not a broadcast from the UK as required by S297 it was a multipoint transmissionSignal was not uninterruptedPossibly a retransmission from GreeceThere was interference with FAPLs IPR but not as allegedNo intent to avoid a charge as none was availableOne accusation you cant throw at me is that Ive always done my best."


Brian Gannon v- FACTHow can you avoid something which is not available?e.g. payment for rights which are not for saleS297 (1) CDPAS298 (2)(a) CDPAS298 (3) CDPAWe lost because we didnt win."


Civil Actions Under the Copyright, Designs & Patents Act


The Laws of the GameS.298 of the Copyright, Designs & Patents Act 1988 (1) A person who(a) makes charges for the reception of programmes included in a broadcasting service provided from a place in the United Kingdom or any other member State,(b) sends encrypted transmissions of any other description from a place in the United Kingdom or any other member State, or(c) provides conditional access services from a place in the United Kingdom or any other member State,is entitled to the following rights and remedies.I am not going to make it a target but it is something to aim for."


The Laws of the GameS.298 (2) He has the same rights and remedies against a person(a) who makes, imports, distributes, sells or lets for hire, offer or exposes for sale or hire, or advertises for sale or hire,has in his possession for commercial purposes, orInstalls, maintains or replaces for commercial purposesany apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do soas a copyright owner has in respect of an infringement of copyright.I am not going to make it a target but it is something to aim for."


Following defeat in the lower divisionsFAPL take on (1) QC Leisure and (2) David Richardson in December 2006The Claimant claims: (1) an injunction to prevent the Defendants (a) infringing the Claimants copyright, and (b) importing.selling.offering for sale.any apparatus designed or adapted to enable or assist persons to watch Premier League football without licence from the Claimant (c) possessing such apparatus for commercial purposes; and (d) installing or maintaining such equipment..

The Offence StrategyWhether that was a penalty or not, the referee thought otherwise."


s298(2) CDPA are not entitled to do so decoder card and foreign service subscription obtained legitimatelyArticle Three of the Audiovisual Media Services Directive (2010/13/EU)"Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive.European Defence

Defence TacticsI promise results, not promises."


View from the TerracesThe Police were reluctant to get involvedTSO only interested in counterfeit goodsCPDA creates a criminal offence principally to give some bite to seizure of infringing goodsCriminal Courts decided they were the wrong forum to determine CPDA matters

I honestly believe we can go all the way to Wembley unless someone knocks us out."

Trying to impute guilty knowledge has not workedNeither has confusing criminal and civil remedies


View from the TerracesThe foreign broadcaster exercises its rights legitimately including encoded transmissionThe foreign box decoder manufacturer makes and markets his product legitimatelyThe foreign decryption card supplier produces and markets his product legitimatelyWhat I said to them at half-time would be unprintable on the radio."


View from the TerracesCivil remedy requires action by a rights holder - hence FAPLs involvementTheir principal claim should be against their foreign licensee if they think there is a breach of contract, butPurchase and importation of a decoder box and card is not against the law

Certain people are for me, certain people are pro me."


View from the TerracesGrey markets are a fact of life BSkyB benefits significantly from its unofficial "overseas" subscribersTechnical and commercial issues having failed, the rights holders are testing the extent to which contracts can circumvent legal principlesWith four minutes gone the score is already 0-0"


View from the OfficialsAdvocate General Julianne KokottCase C-403/08 (FAPL -v QC Leisure)Case C-429/08 (MPS v- Karen Murphy)The issue in a nutshell:Does the live satellite transmission of football matches involve rights which require the partitioning of the internal market?

Never go for a 50/50 ball unless you are 80/20 sure of winning it."


View from the OfficialsThe economic exploitation of the rights is not undermined by the use of foreign decoder cards since the cards have been paid for. There is no specific right to charge different prices for a work in each member state.The marketing of broadcasting rights on the basis of territorial exclusivity is tantamount to profiting from the elimination of the internal market.Charging differential prices for domestic as opposed to commercial use for the same rights cannot justify a territorial restriction on the freedom to provide services (may consider a veto for authors to object to their works being shown in pubs)If we played like this every week we wouldnt be so inconsistent."


View from the OfficialsThere are no existing right which protect the communication of a broadcast to the public where no entrance fee is charged

An AG opinion is not binding but often followed.

Full time result due mid 2011

Stay tunedIf we played like this every week we wouldnt be so inconsistent."


Satellite Broadcast Rights& Wrongs


Words of WisdomIf you don't believe you can win, there is no point in getting out of bed at the end of the day Neville SouthallOK we lost but good things came from it negative and positive Glenn HoddleI would have to be deaf not to read the allegations Bobby DownesIf you stand still, theres only one way to go ... and thats backwards Peter ShiltonYou weigh up the pros and cons and try to put them in chronological order Dave BassettThis tie is a potential potato skin Alan HansenIf history is going to repeat itself I think we can expect the same thing again Terry Venables


Words of Wisdom (2)I am as happy as I can be but I have been happier Ugo EhioguOne accusation you cant throw at me is that Ive always done my best Alan ShearerWe lost because we didnt win RonaldoI would not be bothered if we lost every game so long as we win the league Mark VidukaIm not going to make it a target but its something to aim for Steve CoppellI promise results, not promises John BondWhether that was a penalty or not, the referee thought otherwise Brian Moore


Words of Wisdom (3)I honestly believe we can go all the way to Wembley unless someone knocks us out Dave BassettWhat I said to them at half-time would be unprintable on the radio Gerry FrancisCertain people are for me, certain people are pro me Terry VenablesNever go for a 50/50 ball unless you are 80/20 sure of winning it Ian DarkeWith four minutes gone the score is already 0-0 Ian DarkeIf we played like this every week we wouldnt be so inconsistent Bobby Robson


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