Illegal Streaming and Copyright Infringement: the Government’s set to over set-top boxes
On 22 October 2018 the Government published its response on whether there is a need for legislative change to deal with the issue of illicit Internet Protocol television (IPTV) streaming devices, also known as set-top boxes. The UK Intellectual Property (IPO) office called for views on this issue back in February 2017 following concerns from broadcasters and a range of content owners that the existing legal framework did not provide sufficient tools to tackle the growing threat.
We have reported in the past on cases brought by the Football Association Premier League against pub landlords for the use of foreign decoder cards to screen foreign satellite broadcasts of Premier League football matches to the public. Back in 2012, in Football Association Premier League Ltd and others v QC Leisure and others  EWCA Civ 1708 it was found that publicans who use foreign decoder cards to screen foreign satellite broadcasts of Premier League football matches to the public will be infringing copyright. However, cases such as these did not bring an end to the problems in this area.
Latterly there has been a move away from the use of foreign decoder cards to the use of IPTV boxes which allow viewers to stream content from various sources, including premium sports channels. The set top boxes themselves are not illegal. However, additional Apps downloaded onto the boxes can allow users illegally to access content which they do not have permission to stream. The IPO stated that the use of IPTV boxes to access illegal content appears to have increased in recent months and it estimates that around one in four may not be paying for what they are watching.
Call for views
In its initial Call for Views back in February 2017, the Government noted that a range of existing legislation applies to the sale, advertising, supply or use of set-top boxes for illicit streaming. For example s297 (fraudulent reception of transmissions) and s297A (unauthorised decoders) of the Copyright, Designs and Patent Act 1988 and s7 (making or supplying articles for use in frauds) and s11 (obtaining services dishonestly) of the Fraud Act 2006. It also pointed to a number of successful cases where individuals had been successfully convicted for supplying devices to pubs and individuals, which facilitated piracy, or for the provision of illicit content streams without involvement in the provision of IPTV boxes.
The Government noted that although over half of respondents advocated legislative action, the remainder considered that the current legislation is adequate to tackle the problem. Due to the lack of agreement on the issue, the Government sought independent legal advice on possible changes to the law. Counsel’s view was that the existing legislation was sufficient, and pointed in particular to s11 of the Fraud Act 2006 and s 44 of the Serious Crime Act 2007 as examples of where the legislation provides sufficient sentencing powers for offences relating to the illicit use of set top boxes. The Government believes that recent successful prosecutions under this legislation support that view.
Following this advice, and in light of the successful prosecutions subsequently secured through the Courts, the Government stated that is not proposing to make legislative changes at this time.
Although a lack of further legislative support may come as a disappointment to rights holders, the Government highlighted that it is taking a range of additional steps to counter the problem.
A number of respondents suggested that any changes to the legal framework should look to address the proliferation of Apps and plugins that point users of legitimate boxes to infringing material. The Government confirmed that it plans to work to identify disruptions that may be applied at other points in the supply chain, for example App developers. The Government also highlighted that it will consider the evidence for and potential impact of administrative site blocking (as opposed to requiring a High Court injunction in every case), as well as identifying the mechanisms through which administrative site blocking could be introduced.
For more information please contact Christina Fleming on +44 (0)20 7427 1022 or at firstname.lastname@example.org.
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