Copyright, Designs and Patents Act 1988, section 296ZD

Rights and remedies in respect of devices and services designed to circumvent technological measures

Part VII Miscellaneous and General

(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 (C) 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—

(i)are promoted, advertised or marketed for the purpose of the circumvention of, or

(ii)have only a limited commercially significant purpose or use other than to circumvent, or

(iii)are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,

those measures.

(2)The following persons have the same rights against C 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;

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

(c)the owner or exclusive licensee of any intellectual property right in the effective technological measures applied to the work.

(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 device, product or component which a person has in his possession, custody or control with the intention that it should be used to circumvent effective technological measures, as a copyright owner has in relation to any 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)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 [F792 Senior Courts Act 1981F792] , 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).

(7)In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts enabled or facilitated an infringement of copyright.

(8)Subsections (1) to (5), (6)(b) and (7) 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.

(9)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 296ZD 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 296ZD 5

Nintendo Co Ltd v Sky UK Ltd & Ors

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

Interprets the provision as applying to devices promoted, designed or commercially supplied to circumvent effective technological measures protecting copyright works other than computer programs. The court found that Nintendo’s encryption measures and the defendants’ devices fell within the provision, and that Nintendo had standing to sue. (see paras [24]-[31])

Nintendo Company Ltd & Anor v Playables Ltd & Anor

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

Interprets the statutory conditions for liability concerning devices that circumvent effective technological measures applied to copyright works other than computer programs. The court held that the provision imposes strict liability and that lawful uses do not defeat liability where one statutory purpose or design condition is satisfied (see paras [10]-[13]; [20]-[28]). Applies the requirement that effective technological measures have been applied to a copyright work other than a computer program. The Nintendo DS boot-up software, Nintendo Logo Data File, encryption and scrambling satisfied the technological-measures requirement in relation to the protected works (see paras [22]-[26]). Applies the purpose requirement to devices promoted, advertised or marketed for circumvention. The evidence showed that the accused devices enabled users to bypass Nintendo’s technological measures (see paras [12]; [26]). Applies the limited-commercial-purpose condition. The court held that a lawful use did not prevent liability where use of the device with the console still involved circumvention of the technological measures (see paras [21](ii); [41]). Applies the design-purpose condition. The accused devices were primarily designed, produced or adapted to enable or facilitate circumvention because they allowed Nintendo DS games to boot and play by bypassing the protection measures (see paras [12]; [26]). Confirms that subsection (7) provides a limited defence concerning damages and other financial relief where the defendant lacked knowledge or reason to believe that the acts enabled or facilitated copyright infringement. The court considered that the defence was not realistically available on the evidence (see para [21](i)).

Union of European Football Associations (UEFA) v Euroview Sport Ltd

[2010] EWHC 1066 (Ch) · 16 April 2010

The court identifies section 296ZD as implementing Article 6 of Directive 2001/29/EC and refers the scope of technological measures and their interaction with Directive 98/84/EC. (see paras [31]; [44])

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

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F792S. 296ZD(6)(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