PART VII

Technological Protection Measures

Chapter 1

Rights Protection Measures

370. —(1) This section applies where, by or with the licence of the rightsowner—

(a) copies of copyright works to which rights protection measures have been applied or recordings of performances to which rights protection measures have been applied, are made available to the public, or

(b) copies of databases to which rights protection measures have been applied, are re-utilised.

(2) A person who makes available to the public or re-utilises the copies referred to in subsection (1) has the same rights and remedies against a person who—

(a)  (i) makes,

(ii) sells, rents or lends, or offers or exposes for sale, rental or loan,

(iii) imports into the State, or

(iv) has in his or her possession, custody or control,

a protection-defeating device, knowing or having reason to believe that it has been or is to be used to circumvent rights protection measures, or

(b) provides information, or offers or performs any service, intended to enable or assist persons to circumvent rights protection measures,

as a rightsowner has in respect of an infringement of any of his or her rights under this Act.

(3) The presumptions as to ownership of rights specified in Chapter 12 of Part II and Chapter 10 of Part V shall apply in any proceedings under this section, whether civil or criminal, as in proceedings for infringement of the copyright in a work or for infringement of the database right in a database under Part II or Part V.

(4) Sections 145 and 264 shall apply with any necessary modifications in relation to the disposal of anything delivered up or seized by virtue of subsection (2).

(5) References in this Part to copies of a work, recording or database shall include the original.

371. —A person who receives a broadcast or cable programme to which rights protection measures have been applied, knowing or having reason to believe that it is being received unlawfully with the intent to avoid payment of any charge applied by the rightsowner for the reception of that broadcast or cable programme shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

372. —(1) A person who is authorised by the rightsowner—

(a) to make charges for the reception of programmes included in a broadcast or cable programme service, or

(b) to send encrypted transmissions of any other description,

has the same rights and remedies against a person who—

(i)  (I) makes,

(II) sells, rents or lends, or offers or exposes for sale, rental or loan,

(III) imports into the State, or

(IV) has in his or her possession, custody or control,

any apparatus or protection-defeating device, knowing or having reason to believe that the apparatus or device is to be used to enable or assist persons to receive those programmes or transmissions when those persons are not so entitled, or

(ii) provides information, or offers or performs any service, intended to enable or assist persons to receive those programmes or transmissions when those persons are not so entitled,

as a rightsowner has in respect of an infringement of any of his or her rights under this Act.

(2) Without prejudice to any other remedy, in cases of innocent infringement of the rights conferred by subsection (1), the appropriate court may award damages as it considers appropriate in the circumstances, and such damages shall not exceed a reasonable payment in respect of the act complained of.

(3) Sections 145 and 264 shall apply with any necessary modifications in relation to the disposal of anything delivered up or seized by virtue of subsection (1).

373. —(1) Where it appears to the Minister that broadcasts made, or cable programmes or encrypted transmissions sent, from the State are not adequately protected in a country, territory, state or area, the Minister may by order restrict the rights conferred by section 370 , 371 or 372 in relation to broadcasters or providers of cable programme services or encrypted transmissions connected with that country, territory, state or area.

(2) In an order made under subsection (1) the Minister shall designate the country, territory, state or area concerned and provide that, for the purposes specified in that order, a broadcast made or a cable programme or encrypted transmission sent after a date specified in that order shall not qualify for the protection conferred by section 370 , 371 or 372 where at the time of that making or sending the maker or sender is—

(a) an individual domiciled or resident in that country, territory, state or area (and not at the same time domiciled or resident in the State),

(b) a body incorporated under the law of that country, territory, state or area,

(c) a partnership or unincorporated body formed under the law of that country, territory, state or area, or

(d) any other body,

and the order may make such provision for all the purposes of section 370 , 371 or 372 or for such purposes as are specified in that order.

374. —Nothing in this Chapter shall be construed as operating to prevent any person from undertaking the acts permitted—

(a) in relation to works protected by copyright under Chapter 6 of Part II,

(b) in relation to performances, by Chapter 4 of Part III, or

(c) in relation to databases, by Chapter 8 of Part V,

or from undertaking any act of circumvention required to effect such permitted acts.