The plaintiff sold television entertainment through subscriptions. The broadcasts were protected by encryption. The defendant sold equipment which could unscramble the broadcasts. They were sued under the section. At first instance, the claim was struck out.
Held: Programmes were received under the terms of the licence granted by the broadcaster. Those who had not paid were not so licensed, and the receptions were unlawful. Those who sold equipment designed to achieve this were acting in breach of the section. The claim was to proceed.
cw Copyright – Broadcast – Unauthorised reception – Encrypted satellite transmission of television programmes – Sale of unauthorised decoders – Whether sale to persons ‘entitled’ to receive programme
Beldam LJ said: ‘I approach the construction of s 298 with these considerations in mind. The rights and remedies which are given are clearly intended to be in addition to the rights which a copyright owner has in respect of an infringement of copyright. A person who makes charges for the reception of programmes included in a broadcast may or may not be the person who is entitled to rights as a copyright owner. The reception of programmes included in a broadcast is not generally speaking an infringement of copyright by itself.’ and ‘Section 298 is intended to give the person who makes charges for the reception of programmes rights and remedies, similar to those of the owner of copyright, against a person who provides decoding equipment which will enable a person to receive the programmes without paying for them. I have no doubt that that is the purpose of the section and that the words ‘when they are not entitled to do so’ mean, as BBC Enterprises contend, ‘when they are not authorized by them to do so’.’
Staughton LJ said: ‘A person who seeks to charge for programmes, or sends encrypted transmissions, has the right not to have others making apparatus or devices designed to be of use to persons not authorized by him to receive the programmes. The remedies for that right are to be the same as those of a copyright owner in respect of an infringement of copyright. It does not seem to me to matter whether the right is proprietary or not; but I do not think that it is, as it is not a right over property, although one remedy available is delivery up or seizure of certain articles.’
Judges:
Sir Nicolas Browne-Wilkinson V-C, Staughton and Beldam LJJ
Citations:
[1990] 2 All ER 118, [1990] Ch 609, [1990] 2 WLR 1123, [1990] FSR 217
Links:
Statutes:
Copyright Designs and Patents Act 1988 298(2)
Jurisdiction:
England and Wales
Citing:
Cited – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Bradlaugh v Clarke HL 1883
The use of the word ‘like’ is apt to incorporate all the features of the principal subject. . .
Cited by:
Appeal from – BBC Enterprises Ltd v Hi-Tech Xtravision Ltd HL 1991
The BBC’s appeal failed. Section 228 of the 1988 Act is intended to protect those who do no more than re-broadcast or retransmit, while not necessarily being copyright owners of a broadcast in their own right. . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Media
Updated: 25 July 2022; Ref: scu.174137