A person guilty of either offences is liable:

• on summary conviction, to imprisonment for a term of up to three months, or to a fine, or both;
• on conviction on indictment to a fine, or imprisonment for a term of up to two years, or both.

It is a defence for the defendant to prove that he did not know, and had no reasonable ground for believing, that:

• the device, product or component; or
• the service,
• enabled or facilitated the circumvention of effective technological measures.

A new civil remedy is also set out in section 296ZD in connection to the dealing in devices and services which circumvent effective technological measures.

This section applies where:

• effective technological measures have been applied to a copyright work other than a computer program; and
• a person manufactures, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or has in his possession for commercial purposes any device, product or component, or provides services which 
• are promoted, advertised or marketed for the purpose of the circumvention of, or
• have only a limited commercially significant purpose or use other than to circumvent, or
• are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, those measures.

5. Exemptions and Exemption Procedure

Article 6(4) of the InfoSoc Directive addresses the interaction between the legal protection of technological measures for protection of copyright and the need for users to be able to take advantage of certain exceptions which are allowed by Article 5 of the Directive.

To ensure balance in this matter, a new section was introduced (section 296ZE) in order to cover cases where, because of the application of an effective technological measure, a user is unable to carry out those permitted acts.

This new section foresees a remedy where effective technological measures prevent permitted acts – acts which may be done in relation to copyright works, notwithstanding the subsistence of copyright.

Under the scheme where the application of any effective technological measure to a copyright work - other than a computer program - prevents a person from carrying out a permitted act in relation to that work, that person may issue a notice of complaint to the Secretary of State, who has been given an administrative power to act in this area, as and when required.

Pursuant to an investigation, the Secretary of State will establish whether any relevant voluntary measure or agreement subsists, that is:

·       any measure taken voluntarily by a copyright owner, his exclusive licensee or a person issuing copies of a work to the public, or communicating a work to the public (other than a computer program), or

•  any agreement between any of those parties and another party,

the effect of which is to enable a person to carry out a permitted act.

Where it is established there is no subsisting voluntary measure or agreement, he may order the owner of the rights in the work to which the measure has been applied to ensure that the complainant can benefit from the permitted act. Failure to comply with his direction will amount to a breach of statutory duty.

This scheme applies only where a complainant has lawful access to the protected copyright work. It does not apply to copyright works made available to the public on agreed contractual terms, in such a way that members of the public may access them from a place and at a time individually chosen by them.

6. Neighboring Rights & Database Rights

In the United Kingdom, independent copyright may subsist in sound recordings, films, broadcasts, cable programmes, and the typographical arrangement of published editions (CDPA, section 1(1). Therefore, in addition to authors, copyright may also subsist in entrepreneurs who invest in the exploitation of works. As to performers, Part II of the United Kingdom 1988 Act is devoted to the protection of rights in performances, providing protection for their most important economic interests.

In line with Article 6 of the InfoSoc Directive, which also applies in the realms of the sui generis database right and neighboring rights, the provisions on:

• circumvention of technological measures (296ZA),
• on rights and remedies in respect of devices and services designed to circumvent technological measures (296ZD) and
• on the remedy where effective technological measures prevent permitted acts (296ZE)

are said to apply, with any necessary adaptations, to rights in performances, publication right and database right.

7. Technological Protection of Software

Article 6 of the InfoSoc Directive addresses the legal protection of technological measures used to protect works against copyright infringement.  It cannot apply to computer programs and Article 7(1)(c) of Directive 91/250/ECC continues to apply in that context.

The Copyright, Designs and Patents Act 1988 already contained a provision dealing with the circumvention of technical devices (s.296) which only applied to computer programs and did not address the actual act of circumvention. This provision was maintained as regards computer programs only.

This section applies where:

• a technical device has been applied to a computer program; and
• a person knowing or having reason to believe that it will be used to make infringing copies
• manufactures, imports, distributes, sells, lets or has in his possession for commercial purposes any means which only intended purpose is to facilitate the circumvention of a technical device;
• or publishes information meant to enable or assist with the circumvention of a technical device.

References to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program.

The most recent case in this context is the case of Sony Computer Entertainment v Owen [2002] EWHC 45. Sony made computer games consoles (“PlayStation 2�) and Owen imported a computer chip which circumvented a technological measure which was meant to ensure that only authorised copies of discs could be used in the machine and which also guaranteed that discs purchased in one region could not be played in another. Sony went to court seeking summary judgment of a claim for infringement of its rights under s 296. The court held, giving summary judgment for Sony on the claim, that the chip was a device specifically designed to circumvent the copy protection.

8. Miscellaneous & Controversial Subject

In the context of the implementation of Article 6 of the InfoSoc Directive and its requirement for legal remedies against the circumvention of technological protection measures for protection of copyright, some worries were expressed about the fact that technological protection measures would give copyright holders far more control than copyright per se, prevent “free useâ€�, lead to anti-competitive practices, and affect data privacy. The Government concluded that these concerns were not justified because competition law may operate when technological protection measures are used in an anti-competitive way and data protection laws must be complied with. 

Representatives of academics and researchers pointed out that the protection of technological protection measures should not prevent research into cryptography (Recital 48), which the Government agreed with.

Representatives of copyright owners suggested that criminal penalties should also apply to the act of circumvention, which the Government did not deem to be appropriate.  The former were also not sure of whether the proposed remedies completely met the terms of Article 6(2). The Government decided that the provision on civil sanctions in the context of circumvention devices and services should follow the wording of Article 6(2) more faithfully. 

Representatives of copyright owners also thought that the proposed application of the new civil remedies to copies protected by technological protection measures which are “issued or communicated to the publicâ€� would be unjustifiably restrictive. The Government concluded the remedies should apply whenever technological protection measures are applied to works.

Those representatives also suggested that technological protection measures should be defined as measures used to prevent or restrict any unauthorised act, and not only those protected by copyright or related rights.  The Government did not agree with this, as the Directive does not address matters beyond the compass of copyright or related rights. 

Apropos the implementation of Article 6(4), some representatives of copyright owners contended that the scheme should not come into force right away, so as to enable the development of voluntary arrangements.  The Government did not agree with this suggestion, thinking it would not be appropriate to implement Articles 6(1) and 6(2) without simultaneously implementing Article 6(4). 

Some user organisations were of the opinion that where technological protection measures interfere with exceptions users should be able to take more direct action (e.g. legal proceedings), but the Government did not deem that approach to be in line with Article 6(4).

There were also concerns about the fact that the Secretary of State is not imposed a duty to act (he “may� act), but the Government felt that, on the one hand, there may be cases where the Secretary of State should not act, and, on the other hand, the matter may be subject to judicial review.

[For more information on this topic go to http://www.patent.gov.uk]

Author:

Patrícia Akester, PhD

University of Cambridge