Copyright, Designs and Patents Act 1988, section 298

Rights and remedies in respect of apparatus, &c. for unauthorised reception of transmissions

Part VII Miscellaneous and General

(1)A person who—

(a)makes charges for the reception of programmes included in a broadcasting F823. . . service provided from a place in the United Kingdom F824...,

(b)sends encrypted tranmissions of any other description from a place in the United Kingdom F825..., or

(c)provides conditional access services from a place in the United Kingdom F826...,

is entitled to the following rights and remedies.

(2)He has the same rights and remedies against a person—

(a)who—

(i)makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,

(ii)has in his possession for commercial purposes, or

(iii)instals, maintains or replaces for commercial purposes,

any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so, or

(b)who publishes or otherwise promotes by means of commercial communications any information which is calculated to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so,

as a copyright owner has in respect of an infringement of copyright.

(3)Further, he has the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such apparatus as a copyright owner has in relation to an infringing copy.

(4)Section 72 of the M47[F827 Senior Courts Act 1981F827] , section 15 of the M48Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the M49Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property) apply to proceedings under this section as to proceedings under Part I of this Act (copyright).

(5)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 infringed the rights conferred by this section.

(6)Section 114 applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.

(7) In this section “apparatus”, “conditional access technology” and “encrypted” have the same meanings as in section 297A, “transmission” includes transmissions as defined in that section and “conditional access services” means services comprising the provision of conditional access technology. F822]

Definitions used in section 298 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 298 5

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

[2010] EWHC 1066 (Ch) · 16 April 2010

The court identifies the claim under section 298 as dependent on the interpretation of the Conditional Access Directive, including whether foreign decoder cards are illicit devices and whether UEFA has a cause of action. (see paras [4]; [35])

Football Association Premier League Ltd & Ors v QC Leisure & Ors

[2008] EWHC 1411 (Ch) · 24 June 2008Interprets

Applies the statutory rights and remedies for dealings in apparatus enabling unauthorised access to protected programmes or transmissions. The provision was central to the Conditional Access Directive claim. (see paras [53]; [55]-[56]) Applies the prohibition on commercial dealings in apparatus designed or adapted to enable unauthorised access. Its application depended on the interpretation of “illicit device”. (see paras [53]; [66]-[99]) Applies the provision concerning possession of apparatus for commercial purposes. The court provisionally considered that business users could fall within commercial possession. (see paras [133]-[137]) Confirms that key expressions in section 298 take their meanings from sections 297A and 299 and that conditional access services are services providing conditional access technology. (see para [53])

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

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

Section 298(2)(b) was identified as a possible civil remedy if the dispute concerned contractual or commercial restrictions rather than criminality. The court did not finally determine the provision’s application (see para [34]).

What each judgment says about section 298 is in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F822S. 298 substituted (25.5.2000) by S.I. 2000/1175, art. 2(3)
  2. F823Words in s. 298(1)(a) 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)
  3. F824Words in s. 298(1)(a) 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(3) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)
  4. F825Words in s. 298(1)(b) 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(3) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)
  5. F826Words in s. 298(1)(c) 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(3) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)
  6. F827S. 298(4): 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

Marginal citations

  1. M471981 c. 54.
  2. M481985 c. 37.
  3. M491978 c. 23.