Copyright, Designs and Patents Act 1988, section 297A

Unauthorised decoders

Part VII Miscellaneous and General

(1)A person commits an offence if he—

(a)makes, imports, distributes, sells or lets for hire or offers or exposes for sale or hire any unauthorised decoder;

(b)has in his possession for commercial purposes any unauthorised decoder;

(c)instals, maintains or replaces for commercial purposes any unauthorised decoder; or

(d)advertises any unauthorised decoder for sale or hire or otherwise promotes any unauthorised decoder by means of commercial communications.

(2)A person guilty of an offence under subsection (1) is liable—

[F808 (a)on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both;F808,F807]]

(b)on conviction on indictment, to imprisonment for a term not exceeding [F809tenF809] years, or to a fine, or to both.

(3)It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that the decoder was an unauthorised decoder.

(4)In this section—

  • “apparatus” includes any device, component or electronic data (including software);

  • “conditional access technology” means any technical measure or arrangement whereby access to encrypted transmissions in an intelligbile form is made conditional on prior individual authorisation;

  • “decoder” means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded;

  • “encrypted” includes subjected to scrambling or the operation of cryptographic envelopes, electronic locks, passwords or any other analogous application;

  • “transmission” means—

    (a)

    F810,F811 any programme included in a broadcasting . . . service which is provided from a place in the United Kingdom...; or

    (b)

    F812,F813,F811 an information society service (within the meaning of Directive 98/34/EC of the European Parliament and of the Council of 22nd June 1998 , as amended by Directive 98/48/EC of the European Parliament and of the Council of 20th July 1998 ) which is provided from a place in the United Kingdom ...; and

  • “unauthorised”, in relation to a decoder, means that the decoder is designed or adapted to enable an encrypted transmission, or any service of which it forms part, to be accessed in an intelligible form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for accessing the transmission or service (whether by the circumvention of any conditional access technology related to the transmission or service or by any other means).

Cases considering section 297A 3

Helidon Vuciterni Alsat UK Ltd, R (on the application of) v Brent Magistrates' Court & Anor

[2012] EWHC 2140 (Admin) · 25 July 2012

The court held that the decoder cards were not unauthorised decoders for section 297A purposes. Reliance on the provision could not be maintained, and the material doubts concerning its application should have been disclosed to the District Judge (see paras [25]-[29]).

Maxwell-King v United States of America

[2006] EWHC 3033 (Admin) · 7 December 2006Interprets

Applies to the earlier English charges concerning making and selling unauthorised decoders for United Kingdom transmissions. Those proceedings did not establish an abuse of process in relation to the distinct United States conduct. (see paras [16], [27], [32]) Applies the unauthorised-decoder offence to the proposed alternative English prosecution. The court held that the offence had to be read with the statutory definition in section 297A(4), so it did not cover apparatus for decoding transmissions provided from the United States. (see para [32]) Defines the relevant decoder and transmission for the unauthorised-decoder offence. The definition limits the offence to transmissions provided from the United Kingdom or another member state, excluding transmissions provided from the United States. (see para [32])

Murphy v Media Protection Services Ltd

[2007] EWHC 3091 (Admin) · 21 December 2007Interprets

Cited because its related wording concerning a transmission provided from the United Kingdom was historically inserted by the Broadcasting Act 1990 and later amended for conditional access legislation. The provision did not determine the appeal (see paras [13], [32]-[34]).

What each judgment says about section 297A is in the case-law panel in the full Act.

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F807S. 297A substituted (28.5.2000) by S.I. 2000/1175, art. 2(2)
  2. F808S. 297A(2)(a) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(a)(5); S.I. 2002/2749, art. 2
  3. F809Word in s. 297A(2)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(b)(5); S.I. 2002/2749, art. 2
  4. F810Words in s. 297A(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)
  5. F811Words in s. 297A(4) omitted (31.12.2020) by virtue of The Broadcasting (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/224), reg. 1(2), Sch. 1 para. 35(2) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)
  6. F812O.J. L204, 21.7.98, p.37
  7. F813O.J. L217, 5.8.98, p.18