Higgs v R

An effective technological measure under Copyright, Designs and Patents Act 1988 must itself operate as a technological or mechanical barrier to acts of copyright infringement. It is insufficient that the measure generally hinders infringement by preventing pirated games from being played and thereby reducing the commercial market for them.

The United Kingdom wording is consistent with article 6 of Directive 2001/29/EC. The added reference to acts restricted by copyright makes explicit what is implicit in the Directive. Preparatory material does not justify a different construction unless it clearly establishes a definite legislative intention.

The appellant ran a business selling modchips, fitting them to computer games consoles, and selling modified consoles. Modchips enabled consoles to play CD-ROMs that lacked the manufacturers’ embedded codes, including pirated games.

He was convicted at Bristol Crown Court of 26 offences under section 296ZB of the Copyright, Designs and Patents Act 1988. The prosecution did not put its case on the basis that playing a pirated game caused transient copying of protected material into the console’s memory. Instead, it argued that the modchips circumvented measures which restricted infringement by sustaining the market for pirated games.

The appeal concerned whether those console measures were “effective technological measures” within section 296ZF.

1. Appeal allowed; convictions quashed. The measures defeated by the modchips were not effective technological measures on the case advanced to the jury.

2. Sections 296ZF(1) and (3) require the measure to protect a copyright work by preventing or restricting unauthorised acts which are themselves restricted by copyright. Read with section 296ZF(2), the measure must control use by an access, protection or copy-control process achieving that protection.

3. A measure which merely impedes the commercial availability of pirated games does not meet that test. It must itself form a technological or mechanical barrier to a person’s access to protected material or capacity to copy it. The fact that modchips could encourage the market for pirated games was therefore insufficient.

4. The court adopted the reasoning in Stevens v Sony [2005] HCA 58. The differences between the Australian and United Kingdom wording did not affect the analysis. Article 6(3) of Directive 2001/29/EC supported the same result: the additional United Kingdom words made explicit that only acts needing the copyright owner’s authority were in issue. The Directive’s preparatory material did not clearly show an intention to widen the provision.

5. The court observed that the result could have differed if the Crown had proved that playing a pirated game made transient copies of copyright material in the console’s RAM. Such copying would be a restricted act under section 17. That was not the basis on which the jury had been invited to convict.

6. The court certified the agreed question of law of general public importance, but refused leave to appeal to the House of Lords.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions.
• Bristol Crown Court: Her Honour Judge Hagen convicted the appellant on 19 October 2007 of 26 offences under section 296ZB of the Copyright, Designs and Patents Act 1988.