Copyright, Designs and Patents Act 1988, section 107

Criminal liability for making or dealing with infringing articles, &c

Part I Copyright

(1)A person commits an offence who, without the licence of the copyright owner—

(a)makes for sale or hire, or

(b)imports into the United Kingdom otherwise than for his private and domestic use, or

(c)possesses in the course of a business with a view to committing any act infringing the copyright, or

(d)in the course of a business —

(i)sells or lets for hire, or

(ii)offers or exposes for sale or hire, or

(iii)exhibits in public, or

(iv)distributes, or

(e)distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

(2)A person commits an offence who—

(a)makes an article specifically designed or adapted for making copies of a particular copyright work, or

(b)has such an article in his possession,

knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

[F283 (2A) A person (“P”) who infringes copyright in a work by communicating the work to the public commits an offence if P—

(a)knows or has reason to believe that P is infringing copyright in the work, and

(b)either—

(i)intends to make a gain for P or another person, or

(ii)knows or has reason to believe that communicating the work to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss.

(2B)For the purposes of subsection (2A)—

(a) “gain” and “loss”—

(i)extend only to gain or loss in money, and

(ii)include any such gain or loss whether temporary or permanent, and

(b) “loss” includes a loss by not getting what one might get. F283]

(3)Where copyright is infringed (otherwise than by reception of a [F284communication to the publicF284] )—

(a)by the public performance of a literary, dramatic or musical work, or

(b)by the playing or showing in public of a sound recording or film,

any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

(4)A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable—

(a)on summary conviction to imprisonment for a term not exceeding six months or [F285a fineF285] , or both;

(b)on conviction on indictment to a fine or imprisonment for a term not exceeding [F286tenF286] years, or both.

[F287 (4A)A person guilty of an offence under subsection (2A) is liable—

(a)on summary conviction to imprisonment for a term not exceeding three months or [F288 a fineF288] , or both;

(b)on conviction on indictment to a fine or imprisonment for a term not exceeding [F289 tenF289] years, or both.F287]

(5)A person guilty of any other offence under this section is liable on summary conviction to imprisonment for a term not exceeding [F290threeF290] months or a fine not exceeding level 5 on the standard scale, or both.

(6)Sections 104 to 106 (presumptions as to various matters connected with copyright) do not apply to proceedings for an offence under this section; but without prejudice to their application in proceedings for an order under section 108 below.

Definitions used in section 107 9

article

“article” means any article of manufacture and includes any part of an article if that part is made and sold separately;

Defined in Sch.4 para.38 · see it in the full Act

“article”, in the context of an article in a periodical, includes an item of any description;

Defined in s.178 · see it in the full Act
infringing copy

(1) In this Part “infringing copy”, in relation to a copyright work, shall be construed in accordance with this section.

Defined in s.27(1) · see it in the full Act

(6) In this Part “infringing copy” includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions —

  • section 29A(3) (copies for text and data analysis for non-commercial research),

  • section 28B(7) and (9) (personal copies for private use),

  • section 31A(5) and (6) (disabled persons: copies of works for personal use),

  • section 31B(11) (making and supply of accessible copies by authorised bodies),

  • section 35(5) (recording by educational establishments of broadcasts),

  • section 36(8) (copying and use of extracts of works by educational establishments),

  • section 42A(5)(b) (copying by librarians: single copies of published works),

  • section 61(6)(b) (recordings of folksongs),

  • ...

  • ...

  • ...

  • ...

  • ...

  • section 56(2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy),

  • section 63(2) (copies made for purpose of advertising artistic work for sale),

  • section 68(4) (copies made for purpose of broadcast . . . ),

  • section 70(2) (recording for the purposes of time-shifting),

  • section 71(2) (photographs of broadcasts), or

  • any provision of an order under section 141 (statutory licence for certain reprographic copying by educational establishments).

Defined in s.27(6) · see it in the full Act
copyright work

(2) In this Part “copyright work” means a work of any of those descriptions in which copyright subsists.

Defined in s.1(2) · see it in the full Act
made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act
copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act
performance

(2) In this Part “performance”, in relation to a work—

(a)includes delivery in the case of lectures, addresses, speeches and sermons, and

(b)in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.

Defined in s.19(2) · see it in the full Act
musical work

“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Defined in s.3(1) · see it in the full Act
sound recording

(1) In this Part “sound recording” means—

(a)a recording of sounds, from which the sounds may be reproduced, or

(b)a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

Defined in s.5A(1) · see it in the full Act

“sound recording” means—

Defined in s.5(1) · see it in the full Act
film

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5B(1) · see it in the full Act

“film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5(1) · see it in the full Act

Cases considering section 107 10

Szilard Bellencs v Hungary

[2023] EWHC 2235 (Admin) · 11 September 2023Limits

Considers the scope of copyright-related criminal offences as contextual material relevant to interpreting the later computer misuse legislation. It did not determine the copyright issue. (see paras [75]-[80]) Considers the categories of copyright infringement made criminal, including commercial dealing and distribution, as contextual evidence bearing on whether private copying was intended to be criminalised under the 1990 Act. (see paras [75]-[78]) Considers the related offences concerning articles designed or adapted for making copies, as part of the statutory context. (see para [77]) Considers the offence of communicating copyright work to the public for gain or knowing it will cause loss, as part of the statutory context relevant to the meaning of unauthorised access. (see para [77])

Wyatt & Anor, R (On the Application Of) v Thames Valley Police

[2018] EWHC 2489 (Admin) · 28 September 2018

Applies the requirements concerning unauthorised distribution of an infringing article, including business distribution or prejudicial extent and knowledge or reason to believe. The evidence did not disclose a realistic prospect of proving the offence. (see paras [105]; [194]-[200]) Applies the requirements for criminal communication of a copyright work to the public, including the relevant business or prejudicial extent and knowledge. The provision did not make prosecution realistic on the evidence. (see paras [106]; [109]; [194]-[200])

Bzik v Circuit Court In Swidnica Poland

[2012] EWHC 1308 (Admin) · 2 May 2012Interprets

The court used section 107 as the principal possible equivalent copyright offence. It noted the statutory exclusion for private and domestic use and assessed whether the alleged possession fell within the business-related offence. (see paras [8]-[11], [16], [18]-[20]) The court held that section 107(1)(b) could provide an equivalent offence if the appellant had been importing the discs into Poland, assuming the conduct had occurred in the United Kingdom. (see para [18]) Section 107(1)(c) required possession of an infringing copy, knowledge or reason to believe that it was infringing, possession in the course of a business, and possession with a view to infringing copyright. The warrant did not establish the business element to the criminal standard. (see paras [11], [18]-[21])

1 more judgment, and what each says about section 107, are in the case-law panel in the full Act.

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F283S. 107(2A)(2B) substituted for s. 107(2A) (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(2), 118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a)
  2. F284Words in s. 107(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(2) (with regs. 31-40)
  3. F285Words in s. 107(4)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(2)(a) (with reg. 5(1))
  4. F286Word in s. 107(4)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(2)(5); S.I. 2002/2749, art. 2
  5. F287S. 107(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 26(1)(b) (with regs. 31-40)
  6. F288Words in s. 107(4A)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(2)(b) (with reg. 5(1))
  7. F289Word in s. 107(4A)(b) substituted (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(3), 118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a)
  8. F290Word in s. 107(5) substituted (1.1.2011) by The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010 (S.I. 2010/2694), art. 5