|
Crown/Parliamentary Copyright acknowledged
|
|
[ lawindexpro ] [ swarb.co.uk ]
Crown/Parliamentary Copyright acknowledged |
Coram: Sir Nicolas Browne-Wilkinson V.-C., Staughton and Beldam L.JJ.
References: [1990] 2 All ER 18; [1990] 2 WLR 1123
STAUGHTON L.J.
BBC Enterprises Ltd. are a subsidiary of the British Broadcasting Corporation. Amongst other activities they arrange for the transmission to a satellite of the programmes which comprise the BBC Europe service. The satellite then transmits them again to earth, the footprint (as it is called) being in broad terms Western Europe. Before the initial transmission takes place, BBC Enterprises take the precaution of encoding (or encrypting) the programmes. The result is that the programmes are incomprehensible when they arrive once again at ground level, unless the receiver is equipped with a device that decodes or decrypts them.
BBC Enterprises have entered into two agreements with Space Communications (Sat-Tel) Ltd. Thereby BBC Enterprises agree to use the scrambling technology of Sat-Tel in the encrypting process. They also agree that they will only authorise the use of decoders which are designed and made by Sat-Tel. For direct-to-home (D.T.H.) reception the decoders will only be sold to the public by Sat-Tel or distributors authorised by them, save in special circumstances; and part of the sale price of each decoder will be paid by Sat-Tel to BBC Enterprises. This is £100 for each decoder up to 31 March 1990, and £50 for each decoder sold after that date. Different arrangements apply to systems with the acronyms S.M.A.T.V. and C.A.T.V., which need not be explained in detail; those systems involve more than one television set per decoder. Thus it was hoped that BBC Enterprises would derive revenue from the project. The BBC Europe service is not intended for reception in the United Kingdom. As all its programmes can be seen in this country without the benefit of decoding and encoding - save perhaps in parts of Wales - and without payment other than the licence fee, it would be pointless to use the system here.
The plan, like many that are best laid, went awry. Hi-Tech Xtravision Ltd., the defendants in this action, discovered how to make decoders for themselves. Apart from recent legislation, we have not been told of anything in intellectual property law to stop them doing so. They have been making them in this country and selling them in Western Europe, at a price considerably lower than that charged by Sat-Tel or their distributors. Even so, they profess to be willing to pass on to BBC Enterprises the sum of £100 or £50 per decoder sold, although they do not regard themselves as legally obliged to do this. BBC Enterprises protest that the viability of the whole scheme is in peril, not to mention their exclusive agreement with Sat-Tel.
A writ was issued on 21 August 1989. On 25 August a motion for interim relief came before Morritt J., and he accepted undertakings which were to last until a substantial (but not substantive) hearing could be arranged. That took place before Scott J. in November. By then there was another motion on behalf of Hi-Tech to strike out the statement of claim as disclosing no cause of action.
The parties have sensibly agreed before us, and may have agreed before Scott J. also, that the question of law whether BBC Enterprises have a good cause of action should be finally decided, aye or no, in these interlocutory proceedings. There is to be no escape by saying that the cause of action is open to question, but that pleadings should only be struck out in plain and obvious cases. As I said in an earlier appeal this week, there may often be merit in the course which the parties in this case have chosen to adopt by agreement, despite the plain-and-obvious-case rule.
The remaining issues at present are whether Hi-Tech have any other defence; and, if so, whether the balance of convenience is for or against an interim injunction. The only other defence suggested so far is based on European law and articles 85 and 86 of the E.E.C. Treaty.
Scott J. held that the statement of claim should be struck out as disclosing no cause of action. Pending this appeal he granted BBC Enterprises further interim relief, of a more limited kind than the undertakings given to Morritt J. In this court we have heard full argument on the issue as to a cause of action, and, like the judge, we have not entered upon the issues of European law and balance of convenience, for two reasons. First, we do not have the benefit of the views of a judge at first instance upon those issues; and, much more significantly, we have no time left as it is now 2.10 p.m. on the last day of term. So I turn to the question whether BBC Enterprises have a cause of action.
Sections 297 to 299 of the Copyright, Patents and Designs Act 1988 came into force on 1 August 1989. The material provisions are as follows:
"297(1) A person who dishonestly receives a programme included in a broadcasting or cable programme service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale. . . .
"298(1) A person who (a) makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in the United Kingdom, or (b) sends encrypted transmissions of any other description from a place in the United Kingdom is entitled to the following rights and remedies. (2) He has the same rights and remedies against a person who (a) makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or to assist persons to receive the programmes or other transmissions when they are not entitled to do so, or (b) publishes any information which is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so, as a copyright owner has in respect of an infringement of copyright. (3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such apparatus or device as a copyright owner has in relation to an infringing copy. . . .
"299(1) Her Majesty may by Order in Council (a) provide that section 297 applies in relation to the programmes included in services provided from a country or territory outside the United Kingdom, and (b) provide that section 298 applies in relation to such programmes and to encrypted transmissions sent from such a country or territory. (2) No such order will be made unless it appears to Her Majesty that provision has been or will be made under the laws of that country or territory giving adequate protection to persons making charges for programmes included in broadcasting or cable programme services provided from the United Kingdom or, as the case may be, for encrypted transmissions sent from the United Kingdom."
It is agreed that the criminal offence established by section 297(1) is of no direct relevance to this dispute. That is because the criminal law of this jurisdiction is, for the most part, concerned only with conduct in England and Wales; Parliament is not assumed, in a criminal enactment, to have intended to regulate conduct outside this country. There are of course exceptions, but in the main the rule is as I have stated.
So a receiver in Spain who uses the Hi-Tech decoder without payment to or for the account of BBC Enterprises does not commit an offence for which he can be prosecuted under that section, even if he is found in this country. His position may be different if and when Spanish legislation is enacted, with a view to providing the "adequate protection" envisaged by section 299(2).
Scott J. expressed doubts as to whether there could ever be dishonesty in making or buying one's own decoder in order to evade charges sought to be levied by the provider of an encrypted television service. It would follow that section 297 is wholly or largely ineffective. I do not wish to be associated with that doubt. Dishonesty in the criminal law is a topic which has been encumbered with some complication. When such a case arises, it should be decided.
It is on section 298 that BBC Enterprises base their claim. There is no dispute that they qualify as a person within subsection (1), being either one who makes charges for the reception of programmes included in a broadcasting service provided from a place in the United Kingdom, or one who sends encrypted transmissions of any other description from a place in the United Kingdom. There is, I think, no consensus as to which of these descriptions applies to BBC Enterprises; but that does not matter in this case.
The question then is whether Hi-Tech are a person who
"makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or to assist persons to receive the programmes or other transmissions when they are not entitled to do so."
They do make, and sell, decoders designed or adapted to assist other persons to receive programmes or other transmissions. But are those other persons, who use Hi-Tech decoders for that purpose, "not entitled to do so"? That is the nub of the dispute.
Three or possibly four meanings have been put forward for those words. Scott J., as I understand his judgment, held that they must refer to persons who would be infringing a proprietary right of somebody else if they received programmes or transmissions. Since it is common ground that there is no infringement of copyright in watching a spectacle or receiving a television broadcast, and no proprietary right in the waves in the ether, there is nobody to whom the words could refer.
Mr. Tugendhat, for Hi-Tech, whilst content to embrace the conclusion reached by Scott. J., advanced a different interpretation as his primary submission. He argued that persons are not entitled to receive programmes or transmissions if, but only if, they would thereby encounter any positive disentitlement imposed by the law, whether civil or criminal. For example, they would not be entitled to do so if that would involve them in a breach of contract, or a tort, or a breach of confidence, or a breach of copyright, or would result in criminal liability for wrongful interception of a communication, or for using an apparatus for wireless telegraphy without a licence. We are not aware of any such positive disentitlement that would apply to the customers of Hi-Tech in this case.
The third possible meaning is that put forward by Mr. Aikens on behalf of BBC Enterprises. It is that a person is not entitled to receive programmes or transmissions unless he is authorised to do so by or on behalf of the person who provides them. A person who seeks to impose charges for programmes, and in order to enforce the charge encodes them, does not authorise reception without payment of the charge in the manner which he prescribes. So too a person who sends encrypted transmissions without charge - for example, to companies in the same group which need to share confidential information - does not authorise outsiders to receive them. If that be the right meaning of the section, the statement of claim of BBC Enterprises discloses a cause of action against Hi-Tech.
Fourthly, it was suggested in the course of the argument that persons are "not entitled" to receive programmes or other transmissions unless they have a positive legal right to receive them - by contract or any other means which may give rise to such a right. This has to my mind some merit as coming nearest to the natural meaning of the word "entitled." None of the customers of Hi-Tech would, so far as we know, be entitled by that test. However, on reflection I think that the argument goes too far. Not even those who use authorised decoders would be entitled: each has a contract with Sat-Tel, but not with BBC Enterprises; and the contract gives precious little legal right actually to receive any programmes. So I discard the fourth suggested meaning so far as this case is concerned.
The reasoning of Scott J. started from the proposition that, in this country at any rate, everything which is not prohibited by law is permitted. As a general proposition that seems to me wholly acceptable. One must, therefore, in his view find some provision of the law outside section 298 which prohibits reception before one can say that people are not entitled to receive programmes. And there is no rule of the general law, in the rest of the Act of 1988 or elsewhere, which says that they may not receive programmes for which the provider seeks to charge, or which are encrypted, unless positively authorised to do so.
In Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251, 280, Lord Diplock said this of the United Kingdom legislative process:
"the resulting Act of Parliament will be couched in language that accords with the traditional, and widely criticised, style of legislative draftsmanship which has become familiar to English judges during the present century and for which their own narrowly semantic approach to statutory construction, until the last decade or so, may have been largely to blame. That approach for which parliamentary draftsmen had to cater can hardly be better illustrated than by the words of Lord Simonds in Inland Revenue Commissioners v. Ayrshire Employers Mutual Insurance Association Ltd. [1946] 1 All E.R. 637, 641: 'The section . . . section 31 of the Finance Act 1933, is clearly a remedial section . . . It is at least clear what is the gap that is intended to be filled and hardly less clear how it is intended to fill that gap. Yet I can come to no other conclusion than that the language of the section fails to achieve its apparent purpose and I must decline to insert words or phrases which might succeed where the draftsman failed.' The unhappy legacy of this judicial attitude, although it is now being replaced by an increasing willingness to give a purposive construction to the Act, is the current English style of legislative draftsmanship."
Another similar observation of Lord Simonds was cited by Scott J. from Kirkness v. John Hudson & Co. Ltd. [1955] A.C. 696, 714: "The beliefs or assumptions of those who frame Acts of Parliament cannot make the law." That too was a revenue case.
Another decade has almost passed since Fothergill's case. Save perhaps in revenue and penal enactments, I consider that the courts should now be very reluctant to hold that Parliament has achieved nothing by the language it used, when it is tolerably plain what Parliament wished to achieve. That is particularly so in the present case, for the Act of 1988 repealed sections 53 and 54 of the Cable and Broadcasting Act 1984, which dealt with the same subject matter as sections 297 and 298 of the Act of 1988, although in different terms.
In my judgment the solution to the problem which troubled Scott J. is that section 298 itself creates both the right and the remedy. 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 authorised 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. I would therefore reject the interpretation of section 298 adopted by Scott J.
Mr. Tugendhat's primary submission has already been stated in outline. It encounters two difficulties, as it seems to me. First, if there is already a remedy in some other branch of the law against those who receive programmes when they are not entitled to do so - whether by way of criminal penalty or of damages for breach of contract, tort, breach of confidence or infringement of copyright - there does not seem to me to have been any great purpose in enacting section 298. It is true that remedies will now be available to the provider of the programme, whereas otherwise they might only have been available to the Crown or to some other person; and the remedies may be different or more extensive. But these will be adventitious benefits to the provider. He may, in one of Mr. Tugendhat's examples, exercise them because the person receiving the programmes happens to do so in breach of some other contract with somebody else; or, in another example, because that person is operating his television set without a licence. Those are or may be accidental circumstances so far as the provider of the programme is concerned. It can scarcely have been the intention of Parliament to enact such a capricious law.
The second difficulty is that it is hard to see how apparatus or a device could be designed or adapted so as to enable or assist receivers who were in breach of contract, or committing a tort, or guilty of any other unlawful conduct such as is suggested, rather than receivers of encrypted programmes generally. The construction does not fit the apparent intent of the section. This is just another aspect of the adventitious nature of the test proposed by Mr. Tugendhat.
So one is left with Mr. Aiken's solution, that a person is not entitled to receive programmes or other transmissions, of the kind referred to, if he is not authorised to do so by or on behalf of the provider. At one time it seemed that some support for this argument was to be found in section 6(1) and (2):
"(1) In this part a 'broadcast' means a transmission by wireless telegraphy of visual images, sounds or other information which -(a) is capable of being lawfully received by members of the public, or (b) is transmitted for presentation to members of the public; and references to broadcasting shall be construed accordingly. (2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.
On reflection I think that section 6(2) is more concerned with what may be described as received by members of the public, than with what may be received lawfully. So I do not find much assistance in the section. True it shows that Parliament must have contemplated the availability of decoding equipment by or with the authority of the provider of programmes; but one would not have had much difficulty in reaching that conclusion without section 6.
The first argument of substance against Mr. Aikens' solution is that it creates an undesirable monopoly which Parliament cannot have intended. It is not said that there is anything objectionable in the monopoly right to distribute programmes which the BBC has produced, paying the performers and perhaps incurring liability for an additional fee in the case of repeat performances. The argument is that the public should not be obliged to buy expensive decoders from Sat-Tel when they can obtain them for less money from Hi-Tech.
I would imagine that the supply of television programmes to Western Europe is, on the whole, a competitive industry. Language may be a factor of some importance - for all I know "bonjour," "guten tag," "buon giorno," "buenos dias" or "lamhnfsa" may be less comprehensible to most of the region's population than "'Allo 'Allo." But it is not the programmes to which this argument is directed, as I have said. It is the decoders. It is the wrapping paper rather than the goods which is said to be an abuse of monopoly power. There is other machinery for the consideration of restrictions which are contrary to the public interest, without placing an artificial meaning on an Act of Parliament. I do not regard this argument as a ground for rejecting Mr. Aikens' solution.
Secondly, it is submitted that Hi-Tech's customers are entitled to receive the programmes if they pay the charge, and that Hi-Tech are willing to pay it on their behalf. That is not how I read the word "entitled" in section 298(2). One must bear in mind that the subsection is dealing with two cases - where a charge is sought to be made for the reception of programmes, and where encrypted transmissions of any other description are sent. The second case includes or comprises the transmission of confidential information to a limited group or class. No charge is involved. So one cannot say that "not entitled" refers only to those who have not paid.
Finally, it was argued that section 298 should not be so construed as to have exterritorial effect. For my part, I do not accept that a civil enactment dealing with private rights is presumed not to regulate conduct outside the United Kingdom, although initially that appeared to be common ground between the parties, and although there is such a presumption in the case of a criminal enactment. The application of a United Kingdom statute - or of the common law, for that matter - to private civil rights where a foreign element is involved is a much more complex matter. But I need not enter upon that in this case. It is agreed that Hi-Tech make their decoders in this country, and it is that conduct which section 298 seeks to regulate. The use of the decoders abroad is not something in respect of which the section provides a right or a remedy.
Accordingly, I hold that persons who are not authorised by or on behalf of the provider to receive the programmes or other transmissions are not entitled to do so within section 298. The statement of claim of BBC Enterprises discloses a cause of action, and I would allow this appeal.
BELDAM L.J. In these proceedings the plaintiff, BBC Enterprises Ltd., claims to be entitled to the rights and remedies granted under section 298 of the Copyright, Designs and Patents Act 1988 and to enforce them against the defendant, Hi-Tech Xtravision Ltd.
BBC Enterprises is a company set up to exploit commercially the television programmes produced by the BBC For this purpose it which is transmitted by satellite throughout Western Europe.
To try to ensure that it obtains payment from those who receive that service BBC Enterprises encrypt or encode the signals by which the programmes are transmitted to and from the satellite. A person who wishes to receive the programme must therefore obtain a device or apparatus for decoding the signals. Hi-Tech are a company who specialise in the design and manufacture of such apparatus which it has sold in Western Europe.
BBC Enterprises did not itself have the technical expertise to encrypt the signals so it made an agreement with a company called Space Communications (Sat-Tel) Ltd. not only to encrypt the signals but also to provide decoders for sale to those who wished to receive BBC T.V. Europe. The agreement gave Sat-Tel the exclusive right to produce such decoders.
The technology by which signals carrying television programmes and other broadcasts can be encrypted is not confidential. It is in the public domain and can be used by anyone who has sufficient technical expertise and the means of production to produce a decoder. BBC Enterprises seeks to exercise the rights and remedies given by section 298 of the Copyright, Designs and Patents Act 1988 for the purpose of controlling the sale of decoders to ensure that it receives payment of the charge for viewing which is included in the sale price of the decoder. Hi-Tech contend that this was not the purpose behind section 298 and that anyone should be allowed to make and provide decoders: alternatively, that they should be allowed to do so provided they take steps to secure the payment of the viewing charge.
Over the last ten years many developments have taken place in broadcasting technology. Satellite broadcasting is used not only to transmit television entertainment programmes but also information services, some of which are available on public subscription and others available only to private individuals or companies. Many information services are, for obvious reasons, encrypted. Another development has been in the provision of cable networks supplying entertainment and other programmes. Such programmes do not in general need to be encoded or encrypted because the provider of cable services has much greater control over those who can receive them and over the collection of charges for them. By 1984 it had become clear that the existing statutory framework for broadcasting was inadequate to cope with the needs of cable and satellite television services, particularly for subscription services, and consequently in July of that year the Cable and Broadcasting Act 1984 was passed. Part I of that Act provided for the setting up of a cable and television authority to license and oversee cable programme services. Part II made provision for broadcast satellite services. This was done by enlarging the powers of the Independent Broadcasting Authority to permit direct broadcasting by satellite. Contractors who provided a programme or teletext service were allowed to make charges for reception of the service which was broadcast by the Satellite Broadcasting Board. For this purpose the board could transmit the programmes:
"In such a form (whether scrambled, encoded or otherwise) as will prevent any person from receiving them unless he obtains from the programme provider the means of doing so:" section 43(5).
Part III of the Act of 1984 contained provisions which made it a criminal offence dishonestly to receive a programme with intent to avoid payment of the charge applicable to the reception of that programme: section 53. Further, the Act conferred proprietary rights on persons who made charges for the reception of programmes. Those rights were declared to be infringed by the manufacture, importation, sale or letting on hire of any apparatus or device which was designed or adapted to enable or assist persons to receive programmes without payment. Further provision was made for remedies available to the programme provider for the infringement of the rights thus conferred upon him: section 54.
These provisions were undoubtedly the forerunners of sections 297 and 298 of the Act of 1988 though they were expressed, in my opinion, in much clearer terms.
The main contest before the judge and before this court concerned the construction of the words "when they are not entitled to do so" where they appear in section 298(2) at the end of subsection (2)(a) and (2)(b). For BBC Enterprises Mr. Aikens has argued that those words meant "not authorised to receive the programmes or other transmissions for which charges were made." The judge rejected this construction because he said the section was not intended to create a private right and because, apart from the section, there could be no private right in the waves of the ether. Any person was entitled to receive transmissions unless there was some positive statutory prohibition against his doing so. Although the judge was referred to sections 53 and 54 of the Act of 1984, he rightly commented on the differences in wording between the sections in the two Acts and concluded that he could draw no assistance from the earlier wording. Consequently he sought for some proprietary right outside the terms of the section in aid of which the section gave the remedies to a person making charges for the reception of programmes.
Whereas in section 54 of the Cable and Broadcasting Act 1984 the language made it quite clear that proprietary rights were being created and conferred, the change of wording which omitted express reference to the creation of such rights might be taken as an indication that in the new legislation none were intended to be created.
The logical consequence of the judge's conclusion was, as he held, that those who framed the Act were under a misapprehension as to the law and that section 298 did not give BBC Enterprises the remedies which they sought to enforce.
It is permissible to look outside the words of the statute itself if their meaning is ambiguous for the purpose of deciding the state of the law, any mischief which existed and the nature of the remedy provided. The court is in general entitled to assume in construing an Act of Parliament that the legislature knows the existing state of the law. I believe the principle in a case such as this is that expressed by Lord Blackburn in Bradlaugh v. Clarke [1883] 8 A.C. 354, 373, where he said:
"The Civil Code of Canada, article 12, well expresses what I think is the principle, and also the qualification which I think must now be put on the older authorities. 'When a law is doubtful or ambiguous it is to be interpreted so as to fulfil the intention of the legislature, and to attain the object for which it is passed. The preamble which forms part of the Act, assists in explaining it.' It is upon this principle that it is held, as I think it has always been held, that where a statute was passed for the purpose of repealing and, in part, re-enacting former statutes, all the statutes in pari materia are to be considered, in order to see what it was that the legislature intended to enact in lieu of the repealed enactments. It may appear from the language used that the legislature intended to enact something quite different from the previous law, and where that is the case effect must be given to the intention. But when the words used are such as may either mean that former enactments shall be re-enacted, or that they shall be altered, it is a question for the court which was the intention."
The Copyright Designs and Patents Act 1988 repealed sections 53 and 54 of the Cable and Broadcasting Act 1984. The long title includes the words:
"to make provision with respect to devices designed to circumvent copy-protection of works in electronic form; to make fresh provision penalising the fraudulent reception of transmissions; . . ."
Provisions to this end are contained in Part VII of the Act; section 296 dealing with devices designed to circumvent copy protection is couched in very similar terms to the provisions of section 298. Section 297 makes provision for the criminal offence of fraudulently receiving programmes by dishonestly receiving them with intent to avoid payment of any charge applicable to the reception of the programme.
In spite of the difference in the language used in section 298 from that used in section 54 of the Act of 1984, I believe that it is impossible to discern any intention significantly to alter the rights and remedies afforded to a person who makes charges for the reception of programmes.
It seems to me abundantly clear, looking at the Act of 1988 as a whole, that there are many instances - for example, in section 24 and section 26 - in which it is either made an offence or declared to be an infringement for a person to make or to supply an article designed or adapted either to overcome or to enable others to overcome the protection afforded to copyright under the Act.
A broadcast may not only be the subject of copyright itself, but it may also contain excerpts from works which are themselves the subject of copyright and performances in which performers have the rights conferred by Part II of the Act. For the right to use excerpts from these works and to re-show any performances, the producer or provider of the broadcast may already have paid or agreed to pay. It is, I think, well known that there was considerable public concern that the unlawful and unauthorised copying of musical and television performances could deprive artists of a substantial source of income from their creative work and it does not therefore seem to me surprising that in addition to providing for rights of copyright in broadcasts, the legislature should make provision which is designed to secure to those who create and transmit the programmes a proper financial return for doing so. Ultimately it is the viewing public who will reward not only the provider of the programme, but also the performers by providing the income from which payment can be made for their artistic talent.
I approach the construction of section 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. It is, however, implicit in section 73 that reception and re-transmission of a broadcast in a cable programme service may be an infringement if it is a satellite transmission or an encrypted transmission. Similarly it seems implicit in section 107(3) that reception of a broadcast or cable programme may amount to an infringement. As appears from the facts of this case, there are two types of use which may be made of satellite and encrypted broadcasts. They may be directly received by viewers in the home or they may be received by a person who intends to make them available, for example, to guests at a hotel or more widely to subscribers to a particular service.
However, a person receiving transmissions in his own home is not guilty of any infringement of copyright merely by the act of receiving. 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 a 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 "who is not entitled to do so" mean, as BBC Enterprises contend, "who is not authorised by them to do so."
In granting a person who makes charges for the reception of programmes the same rights and remedies as a copyright owner has in respect of infringement of copyright, the draftsman was clearly referring to the provisions of sections 96 to 98 of Chapter 6 of Part I of the Act. He was giving the person a right of action akin to an infringement of copyright. It is a statutory right which is given by section 298 itself which was thought necessary to protect the position of the person to whom it was granted, viz. the person who either makes charges for the reception of programmes included in the broadcast or cable programme service or who sends encrypted transmissions of any other description.
For these reasons I would allow the appeal.
SIR NICOLAS BROWNE-WILKINSON V.-C. I agree with the judgment of Staughton L.J. and I only add a few words because we are differing from Scott J.
The judge, in seeking to give effect to the words "when they are not entitled to do so" in section 298(2) of the Act of 1988, was searching for some proprietary or primary right vested in the provider of the encrypted broadcast which would render unlawful any dealing with such encrypted broadcast as being an interference with such proprietary right. He reached the conclusion that no such proprietary right existed either under the general law or by virtue of statute. I agree with that conclusion.
In my judgment, however, the search for a right which could properly be described as proprietary was misdirected. There can be no doubt that section 298 creates both rights and remedies: subsections (1) and (2) both say so expressly. Those rights and remedies are not created as against the receiver of the encrypted transmission, but against the person who enables such receiver to decode the transmission and thereby avoid paying the charge. He is, in fact, the abettor. The statutory rights against the abettor are not proprietary. Section 298 merely creates a statutory cause of action against the abettor, exercisable only by those persons who fall within subsection (1) of section 298. There is no property capable of being transferred or licensed to persons who do not fall within the description of subsection (1).
Turning to the person who receives the transmission, "the receiver," I can see no reason why the answer to the question "is the receiver entitled to receive the programmes or transmission?" should depend solely upon whether or not the provider or sender of the transmission enjoys a proprietary right in the transmission. If, contrary to the view both of the judge and of this court, there were such a proprietary But, in the absence of such proprietary right, the question remains what, on the true construction of the Act of 1988, is meant by the receiver being "not entitled to receive." The judge appears to have considered that, in the absence of a proprietary or primary right vested in the provider or broadcaster of the programme, the receiver was entitled to receive the programme. He therefore approached the construction of section 298(2) with a view to seeing whether it confers, either expressly or by implication, such primary or proprietary right on the broadcaster or provider as against the receiver.
In my judgment that was the wrong approach. The question is not whether the Act of 1988 creates some wholly new right as between the broadcaster and the receiver of the programme but whether, in the context of the Act, a person is to be treated as "entitled" to receive such programme without paying for it. The rival arguments on that question of construction have been considered by Staughton L.J. in his judgment, and I agree both with his reasoning and his conclusion.
The judge suspected that Parliament was acting under the misapprehension that the pre-existing law gave the broadcaster a right to refuse the right of reception to all save authorised receivers. That suspicion was ill-founded. We have been referred to the White Paper, Intellectual Property and Innovation, paragraph 10.14 of which clearly states the existing law to have been that providers of a Pay-TV service had no copyright or other right to control reception, and that the sole powers were those contained in sections 53 and 54 of the Cable and Broadcasting Act 1984, which sections were repealed by the Act of 1988. Parliament could not have been under any misapprehension as to the existing state of the law when it passed the Act of 1988.
Although I prefer to express no view on the wider questions affecting copyright generally considered in Beldam L.J.'s judgment, I do agree completely with his approach to construction and to the significance to be attached to the repeal in the Act of 1988 of sections 53 and 54 of the Cable and Broadcasting Act of 1984.
In the circumstances, I agree that the appeal should be allowed.
ORDER
Appeal allowed with costs.
Leave to appeal refused.
PETITION
2 April. The Appeal Committee of the House of Lords (Lord Keith of Kinkel, Lord Goff of Chieveley and Lord Lowry) allowed a petition by the defendants for leave to appeal.
SOLICITORS
Solicitors: Allison & Humphreys; Denton Hall Burgin & Warrens.