CDPA 1988 s.296ZA – Circumvention of technological measures

(1)This section applies where—

(a)effective technological measures have been applied to a copyright work other than a computer program; and

(b)a person (B) does anything which circumvents those measures knowing, or with reasonable grounds to know, that he is pursuing that objective.

(2)This section does not apply where a person, for the purposes of research into cryptography, does anything which circumvents effective technological measures unless in so doing, or in issuing information derived from that research, he affects prejudicially the rights of the copyright owner.

(3)The following persons have the same rights against B 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 work to which effective technological measures have been applied; and

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

(4)The rights conferred by subsection (3) 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.

(5)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 [^F791 Senior Courts Act 1981^F791] , 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).

(6)Subsections (1) to (4) and (5)(b) and any other provision of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication right and database right.

(7)The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.

Definitions used in section 296ZA 1

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 296ZA 3

Bristol Groundschool Ltd v Intelligent Data Capture Ltd & Ors

[2014] EWHC 2145 (Ch) · 2 July 2014

The court held that the patch circumvented effective technological measures applied to copyright works other than a computer program. The beliefs and reasons relied on by BGS did not answer the statutory claim (see paras [171](vi); [196](x)). The court treated the persons identified by section 296ZA(3) as having the same rights as a copyright owner in respect of the circumvention. This supported the finding that BGS had breached section 296ZA (see paras [171](vi); [196](x)).

Young Turks Recordings Ltd & Ors v British Telecommunications Plc & Ors

[2021] EWHC 410 (Ch) · 25 February 2021

The court recorded the claim that the operators were circumventing technological measures and infringing section 296ZA, but did not determine that alternative claim because relief was granted under section 97A (see paras [84]–[85]).

Kabushiki Kaisha Sony Computer Entertainment Inc (t/a Sony Computer Entertainment Inc) v Ball & Ors

[2004] EWHC 1738 (Ch) · 19 July 2004

Applies the provision to the user of an anti-copy-protection device who knowingly or reasonably believes that he is pursuing circumvention. Installation and use of a modified console disclosed no apparent defence. (see paras [35]-[36])

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

Amendments and notes

2 notes from legislation.gov.uk

Amendments

F790Ss. 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)
F791S. 296ZA(5)(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