CRIME — Copyright infringement — Circumvention of effective technological measures — Sale of devices enabling playing on games consoles of games copied in breach of copyright — Whether effective technological measures must physically prevent and not merely discourage or hinder infringement of copyright — Copyright, Designs and Patents Act 1988, ss 296ZB, 296ZF

R v Higgs [2008] EWCA Crim 1324; [2008] WLR (D) 211

CA: Jacob LJ, Hughes LJ and Andrew Smith J: 24 June 2008

To establish the offence of selling a device which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures, it must be shown that the technological measure concerned physically prevents infringement of copyright, and is not merely a discouragement or commercial hindrance to copyright infringement.The Court of Appeal (Criminal Division) so held in allowing an appeal by the defendant, Neil Stanley Higgs, against his conviction on 19 October 2007 in the Crown Court at Bristol before Her Honour Judge Hagen of 26 offences contrary to s 296ZB of the Copyright, Designs and Patents Act 1988.

JACOB LJ, giving the judgment of the Court, said that the defendant ran a business selling “modchips” and computer games consoles to which he had fitted modchips. The function of a modchip was to enable CD-ROMs to be played on a games console even if they did not contain a code corresponding to that in the console, the purpose of the codes being to prevent the playing of “pirate” games, i e games copied in breach of copyright. The defendant had been convicted of selling devices designed to enable or facilitate the circumvention of effective technological measures. The prosecution had not attempted to prove that the use of a modified console to play a game from an infringing CD-ROM itself involved an infringement of copyright by reason of the making of transient copies of copyright material into the console’s memory. The prosecution case was that the effect of selling the modchips was to encourage and exploit a market for pirate games. That depended on giving a wide interpretation to “technological measures” in s 296ZF of the 1988 Act. In Stevens v Sony [2005] HCA 58; 21 ALR 447 the High Court of Australia had preferred the narrow view of a corresponding provision in Australian legislation. The same reasoning applied to the construction of s 296ZF. There was no real difference between the Australian provision and the UK provision. Both provisions owed their inspiration to international conventions, but those conventions were expressed at a fairly high level of generality and neither contained a definition of “effective technological measures”. There was no purposive need for a wide construction of s 296ZF. Neither EU Directive 2001/29/EC nor the related travaux préparatoires supported the wider construction. It came down to the UK statute, which was to be construed as referring to a technological measure which physically prevented infringement of copyright, and was not merely a discouragement or commercial hindrance to copyright infringement.

Appearances: Adam Vaitilingam (Bobbetts Mackan) for the defendant; Iain Macdonald (Bristol City Council Legal Services) for the prosecution.

Reported by: Philip Ridd, solicitor