The defendant appealed against his conviction under the section. He ran a business fitting modifying chips to games consoles allowing them to play non-certificated games CDs.
Held: The appeal was allowed. It was not suggested that the use of a modified console to play a game on an infringing CD was itself an infringement of copyright (though it might have been). The case had been put that by supplying the modifications, the defendant had been encouraging copyright infringement and thereby infringing it. The travaux preparatoires were not an exact match and could not be relied on. The conviction was quashed, but a question certified for the House of Lords.
Jacob LJ said: ‘Is it enough if the technological measure is a discouragement or general commercial hindrance to copyright infringement or must it be a measure which physically prevents it? To our minds the position is clear — it is the latter. Neither the Directive nor the Act would have been drafted in the way that they are if such a general form of hindrance was enough.’
Jacob LJ
[2008] EWCA Crim 1324, [2009] 1 WLR 73, [2008] FSR 34
Bailii
Copyright, Designs and Patents Act 1988 296ZB
England and Wales
Citing:
Cited – Spelling Goldberg v BPC Publishing 1981
Taking a copy of even a single frame of a cinematograph film is probably an infringement of copyright. . .
Applied – Stevens v Kabushiki Kaisha Sony Computer Entertainment and Others 6-Oct-2005
(High Court of Australia) The court was asked whether modchips used to free games consoles were a ‘technological protection measure’ designed to circumvent were a device etc. ‘designed . . to prevent or inhibit’ infringement. The court rejected the . .
Cited – Effort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk) HL 22-Jan-1998
A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an . .
Cited – Kabushiki Kaisha Sony Computer Entertainment Inc., Sony Computer Entertainment Europe Limited, Sony Computer Entertainment UK Limited v Ball, and others ChD 19-Jul-2004
The claimant sought summary judgment in a claim that the defendant had manufactured computer chips which would be used with their playstation computer games consoles to avoid their copy protection systems.
Held: The fact that the chips only . .
Cited – Commissioners of Customs and Excise v Century Life Plc CA 19-Dec-2000
The Directive required member states to exempt from VAT, services involving the provision of insurance, and for intermediaries. Following the Regulator’s involvement, the principal company had to arrange for the checking of existing policies, and . .
Cited by:
Cited – Gilham v Regina CACD 9-Nov-2009
The defendant appealed against his conviction under the 1988 Act as amended. He had sold ‘modchips’ which were used to circumvent copyright protection measures in games consoles.
Held: The appeal failed. The prosecution had remedied the defect . .
Cited – Nintendo Company Ltd and Another v Playables Ltd and Another ChD 28-Jul-2010
The claimant said that the defendant was marketing an anti-copyright protection device, and now sought summary judgment.
Held: A partial settlement having been reached, the court should be particularly careful with an unopposed application. . .
Lists of cited by and citing cases may be incomplete.
Crime, Intellectual Property
Updated: 12 November 2021; Ref: scu.270324