Changes to legislation: There are currently no known outstanding effects for the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002. (See end of Document for details)
Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002
2002 CHAPTER 25
An Act to amend the Copyright, Designs and Patents Act 1988 in respect of criminal offences, search warrants, powers of seizure and orders for forfeiture; to amend the Trade Marks Act 1994 in respect of search warrants and powers of seizure; and for connected purposes. [24th July 2002]
B E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Amendment of the Copyright, Designs and Patents Act 1988
1 Penalties for criminal offences
(1) The Copyright, Designs and Patents Act 1988 (c. 48) (in this Act referred to as the “1988 Act”) is amended as follows.
(2) In section 107(4)(b) (criminal liability for making or dealing with infringing articles, etc.), for “two” substitute “ ten ”.
(3) In section 198(5)(b) (criminal liability for making, dealing with or using illicit recordings), for “two” substitute “ ten ”.
(4) In section 297A(2) (criminal liability in relation to unauthorised decoders)— (a) for paragraph (a) substitute—
“(a) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both;”;
and (b) in paragraph (b), for “two” substitute “ ten ”.
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(5) This section does not have effect in relation to any offence committed before the commencement of this section.
2 Search warrants
(1) The 1988 Act is amended as follows.
(2) In section 109 (search warrants: infringing articles, etc.)— F1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) in subsection (5), after “buildings,” insert “ fixed or ”.
(3) In section 200 (search warrants: illicit recordings)— (a) in subsection (1)(a)—
F2(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) after “importing” insert “ , possessing, selling etc. ”; and
(b) after subsection (3) insert—
“(3A) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 198(1) has been or is about to be committed.”.
(4) After section 297A insert—
“297B Search warrants
(1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfied by information on oath given by a constable (in Scotland, by evidence on oath) that there are reasonable grounds for believing—
(a) that an offence under section 297A(1) has been or is about to be committed in any premises, and
(b) that evidence that such an offence has been or is about to be committed is in those premises,
he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.
(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act 1984 (c. 60) (certain classes of personal or confidential material).
(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the
warrant, and (b) remains in force for 28 days from the date of its issue.
(4) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 297A(1) has been or is about to be committed.
(5) In this section “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft.”.
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Annotations:
Amendments (Textual) F1 S. 2(2)(a)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 1, Sch. 2 (with regs. 31-40) F2 S. 2(3)(a)(i) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 1, Sch. 2 (with regs. 31-40)
3 Forfeiture: infringing copies, etc.
After section 114 of the 1988 Act (order as to disposal of infringing copy or other article) insert—
“114A Forfeiture of infringing copies, etc.: England and Wales or Northern Ireland
(1) In England and Wales or Northern Ireland where there have come into the possession of any person in connection with the investigation or prosecution of a relevant offence—
(a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a
particular copyright work, that person may apply under this section for an order for the forfeiture of the infringing copies or articles.
(2) For the purposes of this section “relevant offence” means— (a) an offence under section 107(1) or (2) (criminal liability for making or
dealing with infringing articles, etc.), (b) an offence under the Trade Descriptions Act 1968 (c. 29), or (c) an offence involving dishonesty or deception.
(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant
offence relating to some or all of the infringing copies or articles, to that court, or
(b) where no application for the forfeiture of the infringing copies or articles has been made under paragraph (a), by way of complaint to a magistrates’ court.
(4) On an application under this section, the court shall make an order for the forfeiture of any infringing copies or articles only if it is satisfied that a relevant offence has been committed in relation to the infringing copies or articles.
(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any infringing copies or articles if it is satisfied that such an offence has been committed in relation to infringing copies or articles which are representative of the infringing copies or articles in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
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(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—
(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.
(7) An order under this section may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case)).
(8) Subject to subsection (9), where any infringing copies or articles are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.
(9) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.
114B Forfeiture of infringing copies, etc.: Scotland
(1) In Scotland the court may make an order under this section for the forfeiture of any—
(a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a
particular copyright work.
(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified
in section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any
other penalty which the court may impose.
(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any infringing copies or articles only if it is satisfied that a relevant offence has been committed in relation to the infringing copies or articles.
(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any infringing copies or articles if it is satisfied that such an offence has been committed in relation to infringing copies or articles which are representative of the infringing copies or articles in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the infringing copies or articles to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the infringing copies or articles should not be forfeited.
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(6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.
(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, infringing copies or articles to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the infringing copies or articles should not be forfeited.
(8) The court shall not make an order following an application under subsection (2) (a)—
(a) if any person on whom notice is served under subsection (5) does not appear, unless service of the notice on that person is proved, or
(b) if no notice under subsection (5) has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve such notice.
(9) Where an order for the forfeiture of any infringing copies or articles is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why infringing copies or articles should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.
(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 (c. 46) shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.
(11) An order following an application under subsection (2)(a) shall not take effect —
(a) until the end of the period of 21 days beginning with the day after the day on which the order is made, or
(b) if an appeal is made under subsection (9) above within that period, until the appeal is determined or abandoned.
(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order
could be brought under the Criminal Procedure (Scotland) Act 1995, or (b) if an appeal is made within that period, until the appeal is determined
or abandoned.
(13) Subject to subsection (14), infringing copies or articles forfeited under this section shall be destroyed in accordance with such directions as the court may give.
(14) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.
(15) For the purposes of this section— “relevant offence” means an offence under section 107(1) or (2)
(criminal liability for making or dealing with infringing articles, etc.),
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or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;
“the court” means— (a) in relation to an order made on an application under subsection (2)
(a), the sheriff, and (b) in relation to an order made under subsection (2)(b), the court
which imposed the penalty.”.
4 Forfeiture: illicit recordings
After section 204 of the 1988 Act (order as to disposal of illicit recording) insert—
“204A Forfeiture of illicit recordings: England and Wales or Northern Ireland
(1) In England and Wales or Northern Ireland where illicit recordings of a performance have come into the possession of any person in connection with the investigation or prosecution of a relevant offence, that person may apply under this section for an order for the forfeiture of the illicit recordings.
(2) For the purposes of this section “relevant offence” means— (a) an offence under section 198(1) (criminal liability for making or
dealing with illicit recordings), (b) an offence under the Trade Descriptions Act 1968 (c. 29), or (c) an offence involving dishonesty or deception.
(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant
offence relating to some or all of the illicit recordings, to that court, or (b) where no application for the forfeiture of the illicit recordings has been
made under paragraph (a), by way of complaint to a magistrates’ court.
(4) On an application under this section, the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.
(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).
(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—
(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.
(7) An order under this section may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1987/1675 (N.I. 26)) (statement of case)).
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(8) Subject to subsection (9), where any illicit recordings are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.
(9) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.
204B Forfeiture: Scotland
(1) In Scotland the court may make an order under this section for the forfeiture of any illicit recordings.
(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified
in section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any
other penalty which the court may impose.
(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.
(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).
(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the illicit recordings to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.
(6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.
(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, illicit recordings to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.
(8) The court shall not make an order following an application under subsection (2) (a)—
(a) if any person on whom notice is served under subsection (5) does not appear, unless service of the notice on that person is proved, or
(b) if no notice under subsection (5) has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve such notice.
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(9) Where an order for the forfeiture of any illicit recordings is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why the illicit recordings should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.
(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.
(11) An order following an application under subsection (2)(a) shall not take effect —
(a) until the end of the period of 21 days beginning with the day after the day on which the order is made, or
(b) if an appeal is made under subsection (9) above within that period, until the appeal is determined or abandoned.
(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order
could be brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or
(b) if an appeal is made within that period, until the appeal is determined or abandoned.
(13) Subject to subsection (14), illicit recordings forfeited under this section shall be destroyed in accordance with such directions as the court may give.
(14) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.
(15) For the purposes of this section— “relevant offence” means an offence under section 198(1) (criminal
liability for making or dealing with illicit recordings), or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;
“the court” means— (a) in relation to an order made on an application under subsection (2)
(a), the sheriff, and (b) in relation to an order made under subsection (2)(b), the court
which imposed the penalty.”.
5 Forfeiture: unauthorised decoders
After section 297B of the 1988 Act (which is inserted by section 2 of this Act) insert—
“297C Forfeiture of unauthorised decoders: England and Wales or Northern Ireland
(1) In England and Wales or Northern Ireland where unauthorised decoders have come into the possession of any person in connection with the investigation or
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prosecution of a relevant offence, that person may apply under this section for an order for the forfeiture of the unauthorised decoders.
(2) For the purposes of this section “relevant offence” means— (a) an offence under section 297A(1) (criminal liability for making,
importing, etc. unauthorised decoders), (b) an offence under the Trade Descriptions Act 1968, or (c) an offence involving dishonesty or deception.
(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant
offence relating to some or all of the unauthorised decoders, to that court, or
(b) where no application for the forfeiture of the unauthorised decoders has been made under paragraph (a), by way of complaint to a magistrates’ court.
(4) On an application under this section, the court shall make an order for the forfeiture of any unauthorised decoders only if it is satisfied that a relevant offence has been committed in relation to the unauthorised decoders.
(5) A court may infer for the purposes of this section that such an offence has been committed in relation to any unauthorised decoders if it is satisfied that such an offence has been committed in relation to unauthorised decoders which are representative of the unauthorised decoders in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
(6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—
(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.
(7) An order under this section may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case)).
(8) Subject to subsection (9), where any unauthorised decoders are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.
(9) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.
297D Forfeiture of unauthorised decoders: Scotland
(1) In Scotland the court may make an order under this section for the forfeiture of unauthorised decoders.
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(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified
in section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any
other penalty which the court may impose.
(3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any unauthorised decoders only if it is satisfied that a relevant offence has been committed in relation to the unauthorised decoders.
(4) The court may infer for the purposes of this section that such an offence has been committed in relation to any unauthorised decoders if it is satisfied that such an offence has been committed in relation to unauthorised decoders which are representative of the unauthorised decoders in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the unauthorised decoders to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the unauthorised decoders should not be forfeited.
(6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995 (c. 46).
(7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, unauthorised decoders to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the unauthorised decoders should not be forfeited.
(8) The court shall not make an order following an application under subsection (2) (a)—
(a) if any person on whom notice is served under subsection (5) does not appear, unless service of the notice on that person is proved, or
(b) if no notice under subsection (5) has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve such notice.
(9) Where an order for the forfeiture of any unauthorised decoders is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why the unauthorised decoders should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.
(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.
(11) An order following an application under subsection (2)(a) shall not take effect —
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(a) until the end of the period of 21 days beginning with the day after the day on which the order is made, or
(b) if an appeal is made under subsection (9) above within that period, until the appeal is determined or abandoned.
(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order
could be brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or
(b) if an appeal is made within that period, until the appeal is determined or abandoned.
(13) Subject to subsection (14), where any unauthorised decoders are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.
(14) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.
(15) For the purposes of this section— “relevant offence” means an offence under section 297A(1)
(criminal liability for making, importing, etc. unauthorised decoders), or under the Trade Descriptions Act 1968 (c. 29) or any offence involving dishonesty or deception;
“the court” means— (a) in relation to an order made on an application under subsection (2)
(a), the sheriff, and (b) in relation to an order made under subsection (2)(b), the court
which imposed the penalty.”.
Amendment of the Trade Marks Act 1994
6 Search warrants
After section 92 of the Trade Marks Act 1994 (c. 26) insert—
“92A Search warrants
(1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfied by information on oath given by a constable (in Scotland, by evidence on oath) that there are reasonable grounds for believing—
(a) that an offence under section 92 (unauthorised use of trade mark, etc. in relation to goods) has been or is about to be committed in any premises, and
(b) that evidence that such an offence has been or is about to be committed is in those premises,
he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.
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(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act 1984 (c. 60) (certain classes of personal or confidential material).
(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the
warrant, and (b) remains in force for 28 days from the date of its issue.
(4) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 92 has been or is about to be committed.
(5) In this section “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft.”.
Miscellaneous
7 Short title, commencement and extent
(1) This Act may be cited as the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002.
(2) This Act (apart from this section) shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.
(3) An order under subsection (2) may contain transitional provisions and savings relating to the provisions being brought into force by the order.
(4) This Act extends to Northern Ireland.
(5) Section 6 and this section also extend to the Isle of Man.
Annotations:
Subordinate Legislation Made P1 S. 7(2) power fully exercised: 20.11.2002 appointed by S.I. 2002/2749, art. 2
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These notes refer to the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c.25) which received Royal Assent on 24 July 2002
COPYRIGHT, ETC. AND TRADE MARKS
(OFFENCES AND ENFORCEMENT) ACT 2002
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 which received Royal Assent on 24 July 2002. They have been provided by the Department of Trade and Industry in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.
SUMMARY
3. This Act amends the criminal provisions in intellectual property law, more specifically the law relating to copyright, rights in performances, fraudulent reception of conditional access transmissions by use of unauthorised decoders and trade marks. The Act brings about some rationalisation of these criminal provisions by removing some of the differences. The three areas in which rationalisation is provided by the Act are maximum penalties for certain offences in intellectual property law, police search and seizure powers relating to offences and court orders on forfeiture of illegal material that may have been seized during investigation of offences. The Act does not make any changes to the scope of criminal offences in intellectual property law so that the type of behaviour that can give rise to an offence remains the same.
BACKGROUND
4. In general, intellectual property laws give private rights that can be enforced by the owners of the rights using civil remedies. In addition, criminal offences have been provided in relation to the making for sale or hire or dealing with the following types of illegal material:
• Copies of material that is protected by copyright, such as music, films and computer software, that have been made without the authorisation of the copyright owner, ie infringing or pirate copies, and articles that are specifically designed or adapted for making infringing copies of copyright material.
— See the offences in section 107(1) and (2) in Part I of the Copyright, Designs and Patents Act 1988.
• Copies of recordings of performances that have been made without the authorisation of the performer(s) or a person having recording rights in the performance, ie illicit or bootleg recordings.
— See the offences in section 198(1) in Part II of the Copyright, Designs and Patents Act 1988.
1
These notes refer to the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c.25)
which received Royal Assent on 24 July 2002 • Devices or other apparatus, including software, that allow people to access
encrypted transmissions without paying the normal fee for their reception, ie unauthorised decoders for conditional access transmissions where the transmissions can be either broadcasts, including satellite broadcasts, cable programme services or information society services.
— See the offences in section 297A in Part VII of the Copyright, Designs and Patents Act 1988.
• Goods, packaging or labels bearing a trade mark that has been applied without the consent of the trade mark owner, ie counterfeit goods, and articles that are specifically designed or adapted for making unauthorised copies of a trade mark for use on such goods and other material.
— See the offences in section 92 of the Trade Marks Act 1994.
It is these criminal provisions that are amended by the Act.
5. There is considerable overlap between the offences relating to the different material indicated above (and other criminal offences such as those in trade descriptions law and law relating to fraud) in that offending behaviour often falls within the scope of more than one offence. Also, some of the differences between the criminal provisions in these four areas in intellectual property law do not have a basis in the precise nature of the offence. The effect of the Act is to remove some of the differences that are not dictated by the nature of the offence by copying certain of the existing criminal provisions in one or more of these areas of intellectual property law into the other areas.
COMMENTARY ON SECTIONS
Section 1
6. This section raises the maximum penalty for conviction on indictment for the offences referred to in sections 107(4), 198(5) and 297A(2) in Parts I, II and VII of the Copyright, Designs and Patents Act 1988, relating to those making for sale or hire or dealing in material infringing copyright, illicit recordings infringing performers’ rights and unauthorised decoders for conditional access services respectively. The new maximum penalty is an unlimited fine and/or up to 10 years in prison to reflect the seriousness of these crimes and to bring the penalties into line with the existing ones for similar trade marks offences. The changes made by the Act are to increase the maximum prison term from 2 years to 10. In addition, and for the same reason of consistency, this section also adds the option of six months in prison to the penalty for summary conviction in section 297A(2).
Sections 2 and 6
7. Section 2 applies the existing provisions in section 109 of Part I of the Copyright, Designs and Patents Act 1988 allowing the police to obtain search warrants to all the offences in section 107(1) and (2), including those only triable in the magistrates’ courts. The equivalent provision in section 200 of Part II of the 1988 Act is applied to all the offences in section 198(1) by this section. Equivalent search warrant provisions are introduced by section 2 for the offences in section 297A of Part VII of the 1988 Act.
8. These provisions are in addition to any powers available to the police as a result of the Police and Criminal Evidence Act 1984 (PACE), but should ensure that there are no impediments to a full investigation of offending behaviour in the areas indicated which could still remain if PACE alone were to apply. The existing search warrant provisions in sections 109 and 200 allow a justice of the peace (or in Scotland, a sheriff or justice of the peace) to grant a warrant where information/evidence on oath leaves him satisfied that there are reasonable grounds for believing that an offence has been or is about to be committed and there is evidence of this on the premises.
2
These notes refer to the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c.25)
which received Royal Assent on 24 July 2002 9. Powers of seizure of evidence that an offence has been or is about to be committed that
are already provided in section 109(4) where a warrant obtained under that section is executed are also introduced by section 2 into section 200 and the new search warrant provision relating to the offences in section 297A.
10. Section 6 introduces search warrant and seizure provisions corresponding to those that are introduced or amended by section 2 for Parts I, II and VII of the Copyright, Designs and Patents Act 1988 for the offences in section 92 of the Trade Marks Act 1994 relating to counterfeit goods and articles for making them. This section also extends to the Isle of Man, since the Trade Marks Act 1994 also does.
Sections 3, 4 and 5
11. Section 3 reproduces in Part I of the Copyright, Designs and Patents Act 1988 provisions corresponding to those in sections 97 and 98 of the Trade Marks Act 1994, allowing forfeiture of infringing goods. Thus, section 3 provides forfeiture provisions for goods infringing copyright, ie infringing copies, and articles specifically designed or adapted for making such copies. Section 97 relates to forfeiture in England, Wales and Northern Ireland and section 98 is a modified version relating to forfeiture in Scotland.
12. The existing forfeiture provisions in trade marks law apply in England, Wales and Northern Ireland where items have come into the possession of a person in connection with the investigation or prosecution of one of the offences, or a related offence under the Trade Descriptions Act 1968, or any offence involving dishonesty or deception. They allow a court to order forfeiture of infringing goods both where a person has been prosecuted for an offence and where there is no prosecution, although in both cases the court must be satisfied that an offence has been committed in relation to the goods. In Scotland, the forfeiture provisions apply where a person has been convicted of one of these offences or on application by the procurator-fiscal. The court can order destruction of goods or release to another person with conditions. Broadly similar provision is introduced by section 3 into Part I of the 1988 Act.
13. Section 4 introduces forfeiture provisions, very similar to those in section 3, into Part II of the Copyright, Designs and Patents Act in respect of goods that infringe rights in performances, ie illicit recordings.
14. Section 5 introduces forfeiture provisions, very similar to those in section 3, into Part VII of the Copyright, Designs and Patents Act in respect of devices that permit fraudulent reception of conditional access transmissions, ie unauthorised decoders used to access transmissions such as satellite television without payment.
COMMENCEMENT
15. Section 7 provides for the provisions of the Act to be brought into force by a commencement order. It is envisaged that this will occur about 2 months after Royal Assent. The Government will disseminate information about the effects of the Act, particularly amongst public sector enforcers.
HANSARD REFERENCES
The following table sets out the dates and Hansard references for each stage of this Act through Parliament.
Stage Date Hansard Ref.
House of Commons
Introduction 18 July 2001 Vol 372 Col 307
Second Reading 23 November 2001 Vol 375 Col 628-638
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These notes refer to the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (c.25)
which received Royal Assent on 24 July 2002 Stage Date Hansard Ref.
Committee 9 January 2002 Hansard Standing Committee C
Report and Third Reading 12 April 2002 Vol 383 Col 285-295
House of Lords
Introduction 15 April 2002 Vol 633 Col 683
Second Reading 10 May 2002 Vol 634 Col 1418-1430
Order of commitment discharged
18 June 2002 Vol 636 Col 624
Third Reading 16 July 2002 Vol 637 Col 1095
House of Lords Hansard Vol 638 Col 821Royal Assent - 24 July 2002
House of Commons Hansard Vol 389 Col 1080
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