Criminal law – Media and entertainment – Circumvention of copy protection – Computer games – Copyright

R v Neil Stanley Higgs (2008): CA (Crim Div) (Lords Justice Jacob, Hughes, Justice Andrew Smith): 24 June 2008

The appellant (H) appealed against his conviction for 26 offences contrary to section 296ZB of the Copyright, Designs and Patents Act 1988.

H ran a business selling ‘modchips’, fitting modchips to customers’ computer games consoles and selling games consoles to which he had already fitted modchips. Fitting a modchip to a games console meant that the machine would then be able to play ‘pirate’ copies of games that had been copied without the relevant embedded codes. The prosecution contended that H was providing devices that enabled the circumvention of ‘effective technological measures’ as defined in section 296ZF of the act. The prosecution case was not, as it might have been, that the use of a modified console to play a game from an infringing disc itself involved an infringement of copyright when the console read the program and copyright material into its memory, but that by selling modchips and modified consoles H was, in effect, encouraging and exploiting a market for pirated games and that modchips opened the market to infringing products and so circumvented effective technological measures which prevented or restricted infringement.

Held: (1) The measures that the modchips were designed to circumvent were not a device designed to prevent or restrict infringement within section 296ZF, Stevens v Sony (2005) HCA 58 applied. That provision should be restrictively construed so as to apply to measures that denied a person access to a copyright work or that limited a person’s capacity to make copies of a work to which access had been gained, and thereby physically prevented or restricted the person from undertaking acts which, if carried out, would or might infringe copyright in the work. The definition was not concerned with devices that did not, by their operations, prevent or curtail specific acts infringing or facilitating the infringement of copyright in a work, but merely had a general deterrent or discouraging effect on those who might be contemplating infringing copyright. The measures which the modchips were designed to circumvent did not prevent infringement but prevented access only after any infringement had taken place. There was no purposive need for a wider construction. Nor was a wider construction to be derived from the provisions of the underlying community legislation in article 6 of Directive 2001/29. It was not enough if the technological measure was a discouragement or general commercial hindrance to copyright infringement – it had to be a measure that physically prevented it.

(2) The court certified a question of law of general public importance as to whether the provisions of section 296ZF in relation to ‘effective technological measures’ applied to devices incorporated into computer games consoles and computer games which did not prevent counterfeit copies being made of such games, but which did prevent the counterfeit copies from being played on games consoles.

Appeal allowed.

Adam Vaitilingam (instructed by Bobbetts Mackan) for the appellant; Iain Macdonald (instructed by local authority solicitor) for the Crown.