Copyright, Designs and Patents Act 1988, section 296

Devices designed to circumvent copy-protection

Part VII Miscellaneous and General

(1)This section applies where—

(a)a technical device has been applied to a computer program; and

(b)a person (A) knowing or having reason to believe that it will be used to make infringing copies—

(i)manufactures for sale or hire, 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 means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or

(ii)publishes information intended to enable or assist persons to remove or circumvent the technical device.

(2)The following persons have the same rights against A as a copyright owner has in respect of an infringement of copyright—

(a)a person—

(i)issuing to the public copies of, or

(ii)communicating to the public,

the computer program to which the technical device has been applied;

(b)the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a);

(c)the owner or exclusive licensee of any intellectual property right in the technical device applied to the computer program.

(3)The rights conferred by subsection (2) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(4)Further, the persons in subsection (2) have the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such means as is referred to in subsection (1) which a person has in his possession, custody or control with the intention that it should be used to facilitate the unauthorised removal or circumvention of any technical device which has been applied to a computer program, as a copyright owner has in relation to an infringing copy.

(5)The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply, as respects anything done under section 99 or 100 by virtue of subsection (4), in relation to persons with concurrent rights as it applies, as respects anything done under section 99 or 100, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6)In this section 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 and are restricted by copyright.

(7)The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a)sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b)section 72 of the [F789 Senior Courts Act 1981F789] , section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (4).

(8)Expressions used in this section which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part.F788]

Definitions used in section 296 2

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
the court

27 (1) In this Act “the court” means—

(a)in England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b)in Scotland, the Court of Session, and

(c)in Northern Ireland, the High Court.

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

“the court” shall be construed in accordance with section 27 of this Act ;

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

Cases considering section 296 5

Nintendo Co Ltd v Sky UK Ltd & Ors

[2019] EWHC 2376 (Ch) · 10 September 2019

Applies the provision to devices knowingly offered for commercial purposes to facilitate circumvention of technical protection applied to computer programs. The knowledge requirement, statutory standing and United Kingdom targeting requirements were satisfied. (see paras [32]-[34])

Bristol Groundschool Ltd v Intelligent Data Capture Ltd & Ors

[2014] EWHC 2145 (Ch) · 2 July 2014Disapplies

The court held that the patch did not constitute a breach of section 296. The statutory provision was not satisfied on the basis advanced because the patch was used for technical support rather than to facilitate the making of infringing copies (see paras [171](v); [196](viii); [223]-[226]). The provision was cited as identifying persons with rights against a person dealing with means of circumvention. The court’s conclusion that section 296 was not breached meant that it did not impose liability on the facts (see paras [171](v); [196](viii)).

Nintendo Company Ltd & Anor v Playables Ltd & Anor

[2010] EWHC 1932 (Ch) · 28 July 2010Interprets

Interprets the requirements for devices facilitating unauthorised removal or circumvention of technical devices applied to computer programs. The court held that the provision requires knowledge or reason to believe that the means will be used to make infringing copies, but not knowledge of a particular program or exclusively infringing use (see paras [29]-[39]). Applies the requirement that a technical device has been applied to a computer program. Nintendo’s protection arrangements applied to the Nintendo DS and game-card programs (see paras [29]; [37]). Interprets the knowledge requirement as requiring knowledge or reason to believe that the means will be used to make infringing copies. The evidence established that requirement because piracy was a well-known principal use of the devices and the defendants dealt in them on a very large scale (see paras [31]-[38]). Applies the requirement concerning means whose sole intended purpose is to facilitate unauthorised removal or circumvention. The relevant elements of the accused devices satisfied that requirement despite possible non-infringing uses (see paras [32]-[35]; [37]). Defines a technical device as a device intended to prevent or restrict unauthorised acts in relation to a computer program. The court treated Nintendo’s protection arrangements as technical devices within that broad definition (see paras [29]; [33]; [37]). Confirms that expressions used in section 296 which are defined for Part 1 of the Act carry their Part 1 meanings. The court relied on the statutory meaning of infringing copies when considering the territorial issue (see paras [29]; [40]).

What each judgment says about section 296 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F788Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)
  2. F789S. 296(7)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2