Copyright and Related Rights Regulations 2003 - Technical Measures

Technical Measures

New s. 296 of the 1988 Act created new rights in respect of copyright works to which copy protection measures have been applied. This right is held concurrently by:

• any person issuing copies of the work to the public or communicating the work to the public; and
• the owner of the copyright in the work, or his exclusive licensee; and
• the owner of any intellectual property right in the technical device or measure, or his exclusive licensee.
• who have the same rights against an infringement of this right as the owner of copyright has against infringement of copyright, including seizure.

The right is infringed:

• with respect to protected computer programs, by a person who "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 who publishes information intended to enable or assist other in removing or circumventing the technical device (new s. 296 of the 1988 Act);
• with respect to other protected works, by a person who knowingly circumvents the technical measures (new s. 296ZA of the 1988 Act);
• by a person who manufactures, imports, distributes, sells or advertises any device or product which, or provides services which:
  • are promoted or marketed for the purpose of circumventing such measures; or
  • have only limited commercial significance beyond circumventing such measures; or
  • are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of such measures (new s. 296ZD of the 1988 Act).

The new section 296ZB established the criminal offenses of:

• manufacturing for sale or hire, importation, sale or distribution of devices or products which are primarily designed or adapted for the purpose of the circumvention of technological measures;
• providing, promoting, advertising or marketing a service the purpose of which is to enable or facilitate the circumvention of technical measures.

The new section 296ZC allows the use of search warrants and forfeiture with respect to these offenses. The new section 296ZE created a remedy via complaint to the Secretary of State if a technical device or measure prevents a person or group of people from carrying out a permitted act with relation to the work. The Secretary of State may issue a direction to the owner of the copyright to take such measures as are necessary to enable the permitted act to be carried out. The breach of such a direction is actionable as a breach of statutory duty.