Obscene Publications Act 1959(1959, c. 66)

An Act to amend the law relating to the publication of obscene matter; to provide for the protection

of literature; and to strengthen the law concerning pornography. [29th July 1959]

1 Test of obscenity(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or

(where the article comprises two or more distinct items) the effect of any one of its items is, iftaken as a whole, such as to tend to deprave and corrupt persons who are likely, having regardto all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2) In this Act ‘article’ means any description of article containing or embodying matterto be read or looked at or both, any sound record, and any film or other record of a picture orpictures.

(3) For the purposes of this Act a person publishes an article who—(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or

for letting on hire; or(b) in the case of an article containing or embodying matter to be looked at

or a record, shows, plays or projects it [, or, where the matter is data storedelectronically, transmits that data].

[(4) For the purposes of this Act a person also publishes an article to the extent that anymatter recorded on it is included by him in a programme included in a programme service.

(5) Where the inclusion of any matter in a programme so included would, if that matterwere recorded matter, constitute the publication of an obscene article for the purposes of thisAct by virtue of subsection (4) above, this Act shall have effect in relation to the inclusion ofthat matter in that programme as if it were recorded matter.

(6) In this section ‘programme’ and ‘programme service’ have the same meaning as inthe Broadcasting Act 1990.]

2 Prohibition of publication of obscene matter(1) Subject as hereinafter provided, any person who, whether for gain or not, publishes an

obscene article [or who has an obscene article for publication for gain (whether gain to himselfor gain to another)] shall be liable—

(a) on summary conviction to a fine not exceeding [the prescribed sum] or toimprisonment for a term not exceeding six months;

(b) on conviction on indictment to a fine or to imprisonment for a term notexceeding three years or both.

(2) . . .(3) A prosecution . . . for an offence against this section shall not be commenced more

than two years after the commission of the offence.[(3A) Proceedings for an offence under this section shall not be instituted except by

or with the consent of the Director of Public Prosecutions in any case where the article in

question is a moving picture film of a width of not less than sixteen millimetres and therelevant publication or the only other publication which followed or could reasonablyhave been expected to follow from the relevant publication took place or (as the case may be)was to take place in the course of a [film exhibition]; and in this subsection ‘the relevantpublication’ means—

(a) in the case of any proceedings under this section for publishing an obscene article,the publication in respect of which the defendant would be charged if theproceedings were brought; and

(b) in the case of any proceedings under this section for having an obscene article forpublication for gain, the publication which, if the proceedings were brought, thedefendant would be alleged to have had in contemplation.]

(4) A person publishing an article shall not be proceeded against for an offence at com-mon law consisting of the publication of any matter contained or embodied in the articlewhere it is of the essence of the offence that the matter is obscene.

[(4A) Without prejudice to subsection (4) above, a person shall not be proceeded againstfor an offence at common law—

(a) in respect of a [film exhibition] or anything said or done in the course of a[film exhibition], where it is of the essence of the common law offence that theexhibition or, as the case may be, what was said or done was obscene, indecent,offensive, disgusting or injurious to morality; or

(b) in respect of an agreement to give a [film exhibition] or to cause anything to besaid or done in the course of such an exhibition where the common law offenceconsists of conspiring to corrupt public morals or to do any act contrary to publicmorals or decency.]

(5) A person shall not be convicted of an offence against this section if he proves that hehad not examined the article in respect of which he is charged and had no reasonable cause tosuspect that it was such that his publication of it would make him liable to be convicted of anoffence against this section.

(6) In any proceedings against a person under this section the question whether an articleis obscene shall be determined without regard to any publication by another person unless itcould reasonably have been expected that the publication by the other person would followfrom publication by the person charged.

[(7) In this section ‘film exhibition’ has the same meaning as in the Cinemas Act 1985.]

Obscene Publications Act 1964(1964, c. 74)

An Act to strengthen the law for preventing the publication for gain of obscene matter and the

publication of things intended for the production of obscene matter. [31st July 1964]

1 Obscene articles intended for publication for gain(1) [Amends the Obscene Publications Act 1959, above.](2) For the purpose of any proceedings for an offence against the said section 2 a person

shall be deemed to have an article for publication for gain if with a view to such publication hehas the article in his ownership, possession or control.

(3) In proceedings brought against a person under the said section 2 for having anobscene article for publication for gain the following provisions shall apply in place ofsubsections (5) and (6) of that section, that is to say,—

(a) he shall not be convicted of that offence if he proves that he had not examined thearticle and had no reasonable cause to suspect that it was such that his having itwould make him liable to be convicted of an offence against that section; and

2 Obscene Publications Act 1964

(b) the question whether the article is obscene shall be determined by reference tosuch publication for gain of the article as in the circumstances it may reasonablybe inferred he had in contemplation and to any further publication that couldreasonably be expected to follow from it, but not to any other publication.

(4) Where articles are seized under section 3 of the Obscene Publications Act 1959 (whichprovides for the seizure and forfeiture of obscene articles kept for publication for gain), and aperson is convicted under section 2 of that Act of having them for publication for gain, thecourt on his conviction shall order the forfeiture of those articles:

Provided that an order made by virtue of this subsection (including an order so made onappeal) shall not take effect until the expiration of the ordinary time within which an appealin the matter of the proceedings in which the order was made may be instituted or, where suchan appeal is duly instituted, until the appeal is finally decided or abandoned; and for thispurpose—

(a) an application for a case to be stated or for leave to appeal shall be treated as theinstitution of an appeal; and

(b) where a decision on appeal is subject to a further appeal, the appeal shall notbe deemed to be finally decided until the expiration of the ordinary timewithin which a further appeal may be instituted or, where a further appeal is dulyinstituted, until the further appeal is finally decided or abandoned.

(5) References in section 3 of the Obscene Publications Act 1959 and this section topublication for gain shall apply to any publication with a view to gain, whether the gain isto accrue by way of consideration for the publication or in any other way.

Patents Act 1977(1977, c. 37)

An Act to establish a new law of patents applicable to future patents and applications for patents; to

amend the law of patents applicable to existing patents and applications for patents; to give effect

to certain international conventions on patents; and for connected purposes. [29th July 1977]

PART I NEW DOMESTIC LAW

Patentability

1 Patentable inventions.(1) A patent may be granted only for an invention in respect of which the following

conditions are satisfied, that is to say—(a) the invention is new;(b) it involves an inventive step;(c) it is capable of industrial application;(d) the grant of a patent for it is not excluded by subsections (2) and (3) below;

and references in this Act to a patentable invention shall be construed accordingly.(2) It is hereby declared that the following (among other things) are not inventions for

the purposes of this Act, that is to say, anything which consists of—(a) a discovery, scientific theory or mathematical method;(b) a literary, dramatic, musical or artistic work or any other aesthetic creation

whatsoever;(c) a scheme, rule or method for performing a mental act, playing a game or doing

business, or a program for a computer;

Patents Act 1977 3

(d) the presentation of information;but the foregoing provision shall prevent anything from being treated as an invention for thepurposes of this Act only to the extent that a patent or application for a patent relates to thatthing as such.

[(3) A patent shall not be granted for an invention the commercial exploitation of whichwould be contrary to public policy or morality.

(4) For the purposes of subsection (3) above exploitation shall not be regarded as contraryto public policy or morality only because it is prohibited by any law in force in the UnitedKingdom or any part of it.*]

(5) The Secretary of State may be order vary the provisions of subsection (2) above forthese purpose of maintaining them in conformity with developments in science and tech-nology; and no such order shall be made unless a draft of the order has been laid before, andapproved by resolution of, each House of Parliament.

2 Novelty(1) An invention shall be taken to be new if it does not form part of the state of the art.(2) The state of the art in the case of an invention shall be taken to comprise all matter

(whether a product, a process, information about either, or anything else) which has at anytime before the priority date of that invention been made available to the public (whether inthe United Kingdom or elsewhere) by written or oral description, by use or in any other way.

(3) The state of the art in the case of an invention to which an application for a patent or apatent relates shall be taken also to comprise matter contained in an application for anotherpatent which was published on or after the priority date of that invention, if the followingconditions are satisfied, that is to say—

(a) that matter was contained in the application for that other patent both as filedand as published; and

(b) the priority date of that matter is earlier than that of the invention.(4) For the purposes of this section the disclosure of matter constituting an invention

shall be disregarded in the case of a patent or an application for a patent if occurring later thanthe beginning of the period of six months immediately proceeding the date of filing theapplication for the patent and either—

(a) the disclosure was due to, or made in consequence of, the matter having beenobtained unlawfully or in breach of confidence by any person—(i) from the inventor or from any other person to whom the matter was made

available in confidence by the inventor or who obtained it from the inventorbecause he or the inventor believed that he was entitled to obtain it; or

(ii) from any other person to whom the matter was made available in confidenceby any person mentioned in sub-paragraph (i) above or in this subparagraphor who obtained it from any person so mentioned because he or the personfrom whom he obtained it believed that he was entitled to obtain it;

(b) the disclosure was made in breach of confidence by any person who obtained thematter in confidence from the inventor or from any other person to whom it wasmade available, or who obtained it, from the inventor; or

(c) the disclosure was due to, or made in consequence of the inventor displayingthe invention at an international exhibition and the applicant states, on filingthe application, that the invention has been so displayed and also, within theprescribed period, files written evidence in support of the statement complyingwith any prescribed conditions.

(5) In this section references to the inventor include references to any proprietor of theinvention for the time being.

* Sub-ss. (3)–(4) in force 28 July 2000, see SI 2000/2037 rr 1–3, 9.

4 Patents Act 1977

(6) In the case of an invention consisting of a substance or composition for use in amethod of treatment of the human or animal body by surgery or therapy or of diagnosispractised on the human or animal body, the fact that the substance or composition formspart of the state of the art shall not prevent the invention from being taken to be new ifthe use of the substance or composition in any such method does not form part of the stateof the art.

3 Inventive stepAn invention shall be taken to involve an inventive step if it is not obvious to a person skilledin the art, having regard to any matter which forms part of the state of the art by virtue only ofsection 2(2) above (and disregarding section 2(3) above).

4 Industrial application(1) Subject to subsection (2) below, an invention shall be taken to be capable of industrial

application if it can be made or used in any kind of industry, including agriculture.(2) An invention of a method of treatment of the human or animal body by surgery

or therapy or of diagnosis practised on the human or animal body shall not be taken to becapable of industrial application.

(3) Subsection (2) above shall not prevent a product consisting of a substance or com-position being treated as capable of industrial application merely because it is invented for usein any such method.

5 Priority date(1) For the purposes of this Act the priority date of an invention to which an application

for a patent relates and also of any matter (whether or not the same as the invention) con-tained in any such application is, except as provided by the following provisions of this Act,the date of filing the application.

(2) If in or in connection with an application for a patent (the application in suit) adeclaration is made, whether by the applicant or any predecessor in title of his, complyingwith the relevant requirements of rules and specifying one or more earlier relevant applica-tions for the purposes of this section made by the applicant or a predecessor in title of his andeach having a date of filing during the period of twelve months immediately preceding thedate of filing the application in suit, then—

(a) if an invention to which the application in suit relates is supported by matterdisclosed in the earlier relevant application or applications, the priority dateof that invention shall instead of being the date of filing the application insuit be the date of filing the relevant application in which that matter wasdisclosed or, if it was disclosed in more than one relevant application, the earliestof them;

(b) the priority date of any matter contained in the application in suit which was alsodisclosed in the earlier relevant application or applications shall be the date offiling the relevant application in which that matter was disclosed or, if it wasdisclosed in more than one relevant application, the earliest of them.

(3) Where an invention or other matter contained in the application in suit was alsodisclosed in two earlier relevant applications filed by the same applicant as in the case of theapplication in suit or a predecessor in title of his and the second of those relevant applicationswas specified in or in connection with the application in suit, the second of those relevantapplications shall, so far as concerns that invention or matter, be disregarded unless—

(a) it was filed in or in respect of the same country as the first; and(b) not later than the date of filing the second, the first (whether or not so specified)

was unconditionally withdrawn, or was abandoned or refused, without—(i) having been made available to the public (whether in the United Kingdom or

elsewhere);

Patents Act 1977 5

(ii) leaving any rights outstanding; and(iii) having served to establish a priority date in relation to another application,

wherever made.(4) The foregoing provisions of this section shall apply for determining the priority

date of an invention for which a patent has been granted as they apply for determining thepriority date of an invention to which an application for that patent relates.

(5) In this section ‘relevant application’ means any of the following applications whichhas a date of filing, namely—

(a) an application for a patent under this Act:(b) an application in or for a convention country (specified under section 90

below) for protection in respect of an invention or an application which, inaccordance with the law of a convention country or a treaty or internationalconvention to which a convention country is a party, is equivalent to such anapplication.

[(6) References in subsection (5) above to a convention country include references to acountry, other than the United Kingdom, which is a member of the World TradeOrganisation.*]

Right to apply for and obtain a patent and be mentioned as inventor

7 Right to apply for and obtain a patent(1) Any person may make an application for a patent either alone or jointly with another.(2) A patent for an invention may be granted—

(a) primarily to the inventor or joint inventors;(b) in preference to the foregoing, to any person or persons who, by virtue of any

enactment or rule of law, or any foreign law or treaty or international convention,or by virtue of an enforceable term of any agreement entered into with theinventor before the making of the invention, was or were at the time of themaking of the invention entitled to the whole of the property in it (other thanequitable interests) in the United Kingdom;

(c) in any event, to the successor or successors in title of any person or personsmentioned in paragraph (a) or (b) above or any person so mentioned and thesuccessor or successors in title of another person so mentioned;

and to no other person.(3) In this Act ‘inventor’ in relation to an invention means the actual deviser of the

invention and ‘joint inventor’ shall be construed accordingly.(4) Except so far as the contrary is established, a person who makes an application for a

patent shall be taken to be the person who is entitled under subsection (2) above to be granteda patent and two or more persons who make such an application jointly shall be taken to bethe persons so entitled.

Applications

14 Making of application(1) Every application for a patent—

(a) shall be made in the prescribed form and shall be filed at the Patent Office in theprescribed manner; and

(b) shall be accompanied by the fee prescribed for the purposes of this subsection(hereafter in this Act referred to as the filing fee).

(2) Every application for a patent shall contain—(a) a request for the grant of a patent;

* Sub-s. (6) in force 29 July 1999, see SI 1999/1899 rr 1 and 7.

6 Patents Act 1977

(b) a specification containing a description of the invention, a claim or claims andany drawing referred to in the description or any claim; and

(c) an abstract;but the foregoing provision shall not prevent an application being initiated by documentscomplying with section 15(1) below.

(3) The specification of an application shall disclose the invention in a manner which isclear enough and complete enough for the invention to be performed by a person skilledin the art.

(4) . . .(5) The claim or claims shall—

(a) define the matter for which the applicant seeks protection;(b) be clear and concise;(c) be supported by the description; and(d) relate to one invention or to a group of inventions which are so linked as to form a

single inventive concept.(6) Without prejudice to the generality of subsection (5)(d) above, rules may provide for

treating two or more inventions as being so linked as to form a single inventive conceptfor the purposes of this Act.

(7) The purpose of the abstract is to give technical information and on publication itshall not form part of the state of the art by virtue of section 2(3) above, and the comptrollermay determine whether the abstract adequately fulfills its purpose and, if it does not, mayreframe it so that it does.

(8) . . .(9) An application for a patent may be withdrawn at any time before the patent is granted

and any withdrawal of such an application may not be revoked.

15 Date of filing application(1) The date of filing an application for a patent shall, subject to the following provisions

of this Act, be taken to be the earliest date on which the following conditions are satisfied inrelation to the application, that is to say—

(a) the documents filed at the Patent Office contain an indication that a patent issought in pursuance of the application;

(b) those documents identify the applicant or applicants for the patent;(c) those documents contain a description of the invention for which a patent is

sought (whether or not the description complies with the other provisions of thisAct and with any relevant rules); and

(d) the applicant pays the filing fee.(4) Where, after an application for a patent has been filed and before the patent is

granted, a new application is filed by the original applicant or his successor in title inaccordance with rules in respect of any part of the matter contained in the earlier appli-cation and the conditions mentioned in subsection (1) above are satisfied in relation tothe new application (without the new application contravening section 76 below) the newapplication shall be treated as having, as its date of filing, the date of filing the earlierapplication.

25 Term of patent(1) A patent granted under this Act shall be treated for the purposes of the following

provisions of this Act as having been granted, and shall take effect, on the date on whichnotice of its grant is published in the journal and, subject to subsection (3) below, shallcontinue in force until the end of the period of 20 years beginning with the date of filing theapplication for the patent or with such other date as may be prescribed.

Patents Act 1977 7

Property in patents and applications, and registration

30 Nature of, and transactions in, patents and applications for patents(1) Any patent or application for a patent is personal property (without being a thing in

action), and any patent or any such application and rights in or under it may be transferred,created or granted in accordance with subsections (2) to (7) below.

(2) Subject to section 36(3) below, any patent or any such application, or any right in it,may be assigned or mortgaged.

(3) Any patent or any such application or right shall vest by operation of law in thesame way as any other personal property and may be vested by an assent of personalrepresentatives.

(4) Subject to section 36(3) below, a licence may be granted under any patent or any suchapplication for working the invention which is the subject of the patent or the application;and—

(a) to the extent that the licence so provides, a sub-licence may be granted under anysuch licence and any such licence or sub-licence may be assigned or mortgaged;and

(b) any such licence or sub-licence shall vest by operation of law in the same way asany other personal property and may be vested by an assent of personalrepresentatives.

(5) Subsections (2) to (4) above shall have effect subject to the following provisions of thisAct.

(6) Any of the following transactions, that is to say—(a) any assignment or mortgage of a patent or any such application, or any right in a

patent or any such application;(b) any assent relating to any patent or any such application or right;

shall be void unless it is in writing and is signed by or on behalf of the parties to the transac-tion (or, in the case of an assent or other transaction by a personal representative, by or onbehalf of the personal representative) or in the case of a body corporate is so signed or is underthe seal of that body.

(7) An assignment of a patent or any such application or a share in it, and an exclusivelicence granted under any patent or any such application, may confer on the assignee orlicensee the right of the assignor or licensor to bring proceedings by virtue of section 61 or69 below for a previous infringement or to bring proceedings under section 58 below for aprevious act.

36 Co-ownership of patents and applications for patents(1) Where a patent is granted to two or more persons, each of them shall, subject to any

agreement to the contrary, be entitled to an equal undivided share in the patent.(2) Where two or more persons are proprietors of a patent, then, subject to the provisions

of this section and subject to any agreement to the contrary—(a) each of them shall be entitled, by himself or his agents, to do in respect of

the invention concerned, for his own benefit and without the consent of orthe need to account to the other or others, any act which would apart fromthis subsection and section 55 below, amount to an infringement of the patentconcerned; and

(b) any such act shall not amount to an infringement of the patentconcerned.

(3) Subject to the provisions of sections 8 and 12 above and section 37 below and to anyagreement for the time being in force, where two or more persons are proprietors of a patentone of them shall not without the consent of the other or others grant a licence under thepatent or assign or mortgage a share in the patent or in Scotland cause or permit security to begranted over it.

8 Patents Act 1977

37 Determination of right to patent after grant(1) [After a patent has been granted for an invention any person having or claiming a

proprietary interest in or under the patent may refer to the comptroller the question—(a) who is or are the true proprietor or proprietors of the patent,(b) whether the patent should have been granted to the person or persons to whom it

was granted, or(c) whether any right in or under the patent should be transferred or granted to any

other person or persons;and the comptroller shall determine the question and make such order as he thinks fit to giveeffect to the determination.]

(5) On any such reference no order shall be made under this section transferring thepatent to which the reference relates on the ground that the patent was granted to a personnot so entitled, and no order shall be made under subsection (4) above on that ground, ifthe reference was made after the end of the period of two years beginning with the date of thegrant, unless it is shown that any person registered as a proprietor of the patent knew at thetime of the grant or, as the case may be, of the transfer of the patent to him that he was notentitled to the patent.

(6) An order under this section shall not be so made as to affect the mutual rights orobligations of trustees or of the personal representatives of a deceased person, or their rightsor obligations as such.

Employees’ inventions

39 Right to employees’ inventions(1) Notwithstanding anything in any rule of law, an invention made by an employee

shall, as between him and his employer, be taken to belong to his employer for the purposes ofthis Act and all other purposes if—

(a) it was made in the course of the normal duties of the employee or in the course ofduties falling outside his normal duties, but specifically assigned to him, and thecircumstances in either case were such that an invention might reasonably beexpected to result from the carrying out of his duties; or

(b) the invention was made in the course of the duties of the employee and, atthe time of making the invention, because of the nature of his duties and theparticular responsibilities arising from the nature of his duties he had a specialobligation to further the interests of the employer’s undertaking.

(2) Any other invention made by an employee shall, as between him and his employer, betaken for those purposes to belong to the employee.

[(3) Where by virtue of this section an invention belongs, as between him and hisemployer, to an employee, nothing done—

(a) by or on behalf of the employee or any person claiming under him for thepurposes of pursuing an application for a patent, or

(b) by any person for the purpose of performing or working the invention,shall be taken to infringe any copyright or design right to which, as between him and hisemployer, his employer is entitled in any model or document relating to the invention.]

40 Compensation of employees for certain inventions(1) Where it appears to the court or the comptroller on an application made by an

employee within the prescribed period that the employee has made an invention belonging tothe employer for which a patent has been granted, that the patent is (having regard amongother things to the size and nature of the employer’s undertaking) of outstanding benefit tothe employer and that by reason of those facts it is just that the employee should be awardedcompensation to be paid by the employer, the court or the comptroller may award him suchcompensation of an amount determined under section 41 below.

Patents Act 1977 9

(2) Where it appears to the court or the comptroller on an application made by anemployee within the prescribed period that—

(a) a patent has been granted for an invention made by and belonging to theemployee;

(b) his rights in the invention, or in any patent or application for a patent for theinvention, have since the appointed day been assigned to the employer or anexclusive licence under the patent or application has since the appointed day beengranted to the employer;

(c) the benefit derived by the employee from the contract of assignment, assignationor grant or any ancillary contract (‘the relevant contract’) is inadequate inrelation to the benefit derived by the employer from the patent; and

(d) by reason of those facts it is just that the employee should be awarded com-pensation to be paid by the employer in addition to the benefit derived fromthe relevant contract;

the court or the comptroller may award him such compensation of an amount determinedunder section 41 below.

(3) Subsections (1) and (2) above shall not apply to the invention of an employee wherea relevant collective agreement provides for the payment of compensation in respect ofinventions of the same description as that invention to employees of the same description asthat employee.

(4) Subsection (2) above shall have effect notwithstanding anything in the relevantcontract or any agreement applicable to the invention (other than any such collectiveagreement).

(5) If it appears to the comptroller on an application under this section that the appli-cation involves matters which would more properly be determined by the court, he maydecline to deal with it.

(6) In this section—‘the prescribed period’, in relation to proceedings before the court, means the period

prescribed by rules of court, and‘relevant collective agreement’ means a collective agreement within the meaning of

[the Trade Union and Labour Relations (Consolidation) Act 1992], made by or on behalfof a trade union to which the employee belongs, and by the employer or an employers’association to which the employer belongs which is in force at the time of the making of theinvention.

(7) References in this section to an invention belonging to an employer or employee arereferences to it so belonging as between the employer and the employee.

41 Amount of compensation(1) An award of compensation to an employee under section 40(1) or (2) above in

relation to a patent for an invention shall be such as will secure for the employee a fair share(having regard to all the circumstances) of the benefit which the employer has derived, or mayreasonably be expected to derive, from the patent or from the assignment, assignation orgrant to a person connected with the employer of the property or any right in the inventionor the property in, or any right in or under, an application for that patent.

(2) For the purposes of subsection (1) above the amount of any benefit derived orexpected to be derived by an employer from the assignment, assignation or grant of—

(a) the property in, or any right in or under, a patent for the invention or anapplication for such a patent; or

(b) the property or any right in the invention;to a person connected with him shall be taken to be the amount which could reasonablybe expected to be so derived by the employer if that person had not been connected withhim.

10 Patents Act 1977

(3) Where the Crown or a Research Council in its capacity as employer assigns or grantsthe property in, or any right in or under, an invention, patent or application for a patent toa body having among its functions that of developing or exploiting inventions resultingfrom public research and does so for no consideration or only a nominal consideration, anybenefit derived from the invention, patent or application by that body shall be treated for thepurposes of the foregoing provisions of this section as so derived by the Crown or, as the casemay be, Research Council.

In this subsection ‘Research Council’ means a body which is a Research Council for thepurposes of the Science and Technology Act 1965.

(4) In determining the fair share of the benefit to be secured for an employee in respectof a patent for an invention which has always belonged to an employer, the court or thecomptroller shall, among other things, take the following matters into account, that is tosay—

(a) the nature of the employee’s duties, his remuneration and the other advantages hederives or has derived from his employment or has derived in relation to theinvention under this Act;

(b) the effort and skill which the employee has devoted to making the invention;(c) the effort and skill which any other person has devoted to making the invention

jointly with the employee concerned, and the advice and other assistancecontributed by any other employee who is not a joint inventor of the invention;and

(d) the contribution made by the employer to the making, developing and workingof the invention by the provision of advice, facilities and other assistance, bythe provision of opportunities and by his managerial and commercial skill andactivities.

(5) In determining the fair share of the benefit to be secured for an employee in respect ofa patent for an invention which originally belonged to him, the court or the comptroller shall,among other things, take the following matters into account, that is to say—

(a) any conditions in a licence or licences granted under this Act or otherwise inrespect of the invention or the patent;

(b) the extent to which the invention was made jointly by the employee with anyother person; and

(c) the contribution made by the employer to the making, developing and working ofthe invention as mentioned in subsection (4)(d) above.

(6) Any order for the payment of compensation under section 40 above may be an orderfor the payment of a lump sum or for periodical payment, or both.

(7) Without prejudice to [section 12 of the Interpretation Act 1978] which provides that astatutory power may in general be exercised from time to time), the refusal of the court or thecomptroller to make any such order on an application made by an employee under section 40above shall not prevent a further application being made under that section by him or anysuccessor in title of his.

(8) Where the court or the comptroller has made any such order, the court or he may onthe application of either the employer or the employee vary or discharge it or suspend anyprovision of the order and revive any provision so suspended, and section 40(5) above shallapply to the application as it applies to an application under that section.

(9) In England and Wales any sums awarded by the comptroller under section 40 aboveshall, if a county court so orders, be recoverable by execution issued from the county court orotherwise as if they were payable under an order of that court.

(10) In Scotland an order made under section 40 above by the comptroller for thepayment of any sums may be enforced in like manner as a recorded decree arbitral.

(11) In Northern Ireland an order made under section 40 above by the comptroller for thepayment of any sums may be enforced as if it were a money judgment.

Patents Act 1977 11

42 Enforceability of contracts relating to employees’ inventions(1) This section applies to any contract (whenever made) relating to inventions made by

an employee, being a contract entered into by him—(a) with the employer (alone or with another); or(b) with some other person at the request of the employer or in pursuance of the

employee’s contract of employment.(2) Any term in a contract to which this section applies which diminishes the employee’s

rights in inventions of any description made by him after the appointed day and the date ofthe contract, or in or under patents for those inventions or applications for such patents, shallbe unenforceable against him to the extent that it diminishes his rights in an invention of thatdescription so made, or in or under a patent for such an invention or an application for anysuch patent.

(3) Subsection (2) above shall not be construed as derogating from any duty of con-fidentiality owed to his employer by an employee by virtue of any rule of law or otherwise.

(4) This section applies to any arrangement made with a Crown employee by or on behalfof the Crown as his employer as it applies to any contract made between an employee and anemployer other than the Crown, and for the purposes of this section ‘Crown employee’means a person employed under or for the purposes of a government department or anyofficer or body exercising on behalf of the Crown functions conferred by any enactment [or aperson serving in the naval, military or air forces of the Crown].

43 Supplementary(1) Sections 39 to 42 above shall not apply to an invention made before the appointed

day.(2) Sections 39 to 42 above shall not apply to an invention made by an employee unless

at the time he made the invention one of the following conditions was satisfied in his case,that is to say—

(a) he was mainly employed in the United Kingdom; or(b) he was not mainly employed anywhere or his place of employment could not be

determined, but his employer had a place of business in the United Kingdom towhich the employee was attached, whether or not he was also attached elsewhere.

(3) In sections 39 to 42 above and this section, except so far as the context otherwiserequires, references to the making of an invention by an employee are references to hismaking it alone or jointly with any other person, but do not include references to his merelycontributing advice or other assistance in the making of an invention by another employee.

(4) Any references [in sections 39 to 42] above to a patent and to a patent being grantedare respectively references to a patent or other protection and to its being granted whetherunder the law of the United Kingdom or the law in force in any other country or under anytreaty or international convention.

(5) For the purposes of sections 40 and 41 above the benefit derived or expected to bederived by an employer from a patent shall, where he dies before any award is made undersection 40 above in respect of the patent, include any benefit derived or expected to be derivedfrom the patent by his personal representatives or by any person in whom it was vested bytheir assent.

(6) Where an employee dies before an award is made under section 40 above in respect ofa patented invention made by him, his personal representatives or their successors in title mayexercise his right to make or proceed with an application for compensation under subsection(1) or (2) of that section.

(7) In sections 40 and 41 above and this section ‘benefit’ means benefit in money ormoney’s worth.

(8) Section 533 of the Income and Corporation Taxes Act 1970 (definition of connectedpersons) shall apply for determining for the purposes of section 41(2) above whether one

12 Patents Act 1977

person is connected with another as it applies for determining that question for the purposesof the Tax Acts.

Infringement

60 Meaning of infringement(1) Subject to the provisions of this section, a person infringes a patent for an invention

if, but only if, while the patent is in force, he does any of the following things in the UnitedKingdom in relation to the invention without the consent of the proprietor of the patent, thatis to say—

(a) where the invention is a product, he makes, disposes of, offers to dispose of, usesor imports the product or keeps it whether for disposal or otherwise;

(b) where the invention is a process, he uses the process or he offers it for use in theUnited Kingdom when he knows, or it is obvious to a reasonable person inthe circumstances, that its use there without the consent of the proprietor wouldbe an infringement of the patent;

(c) where the invention is a process, he disposes of, offers to dispose of, uses orimports any product obtained directly by means of that process or keeps any suchproduct whether for disposal or otherwise.

(2) Subject to the following provisions of this section, a person (other than the proprietorof the patent) also infringes a patent for an invention if, while the patent is in force andwithout the consent of the proprietor, he supplies or offers to supply in the United Kingdom aperson other than a licensee or other person entitled to work the invention with any of themeans, relating to an essential element of the invention, for putting the invention into effectwhen he knows, or it is obvious to a reasonable person in the circumstances, that those meansare suitable for putting, and are intended to put, the invention into effect in the UnitedKingdom.

(3) Subsection (2) above shall not apply to the supply or offer of a staple commercialproduct unless the supply or the offer is made for the purpose of inducing the person suppliedor, as the case may be, the person to whom the offer is made to do an act which constitutes aninfringement of the patent by virtue of subsection (1) above.

(4) Without prejudice to section 86 below, subsections (1) and (2) above shall not apply toany act which, under any provision of the Community Patent Convention relating to theexhaustion of the rights of the proprietor of a patent, as that provision applies by virtue of thatsection, cannot be prevented by the proprietor of the patent.

(5) An act which, apart from this subsection, would constitute an infringement of apatent for an invention shall not do so if—

(a) it is done privately and for purposes which are not commercial;(b) it is done for experimental purposes relating to the subject-matter of the

invention;(c) it consists of the extemporaneous preparation in a pharmacy of a medicine for

an individual in accordance with a prescription given by a registered medical ordental practitioner or consists of dealing with a medicine so prepared;

(d) it consists of the use, exclusively for the needs of a relevant ship, of a product orprocess in the body of such a ship or in its machinery, tackle, apparatus or otheraccessories, in a case where the ship has temporarily or accidentally entered theinternal or territorial waters of the United Kingdom;

(e) it consists of the use of a product or process in the body or operation of a relevantaircraft, hovercraft or vehicle which has temporarily or accidentally enteredor is crossing the United Kingdom (including the air space above it and its terri-torial waters) or the use of accessories for such a relevant aircraft, hovercraft orvehicle;

Patents Act 1977 13

(f) it consists of the use of an exempted aircraft which has lawfully entered or islawfully crossing the United Kingdom as aforesaid or of the importation into theUnited Kingdom, or the use or storage there, of any part of accessory for such anaircraft.

[(g) it consists of the use by a farmer of the product of his harvest for propagation ormultiplication by him on his own holding, where there has been a sale of plantpropagating material to the farmer by the proprietor of the patent or with hisconsent for agricultural use;

(h) it consists of the use of an animal or animal reproductive material by a farmer foran agricultural purpose following a sale to the farmer, by the proprietor ofthe patent or with his consent, of breeding stock or other animal reproductivematerial which constitutes or contains the patented invention.]

61 Proceedings for infringement of patent(1) Subject to the following provisions of this Part of this Act, civil proceedings may be

brought in the court by the proprietor of a patent in respect of any act alleged to infringe thepatent and (without prejudice to any other jurisdiction of the court) in those proceedings aclaim may be made—

(a) for an injunction or interdict restraining the defendant or defender from anyapprehended act of infringement;

(b) for an order for him to deliver up or destroy any patented product in relation towhich the patent is infringed or any article in which that product is inextricablycomprised;

(c) for damages in respect of the infringement;(d) for an account of the profits derived by him from the infringement;(e) for a declaration or declarator that the patent is valid and has been infringed by

him.(2) The court shall not, in respect of the same infringement, both award the proprietor of

a patent damages and order that he shall be given an account of the profits.(3) The proprietor of a patent and any other person may by agreement with each other

refer to the comptroller the question whether that other person has infringed the patent andon the reference the proprietor of the patent may make any claim mentioned in subsection(1)(c) or (e) above.

(4) Except so far as the context requires, in the following provisions of this Act—(a) any reference to proceedings for infringement and the bringing of such pro-

ceedings includes a reference to a reference under subsection (3) above and themaking of such a reference;

(b) any reference to a plaintiff or pursuer includes a reference to the proprietor of thepatent; and

(c) any reference to a defendant or defender includes a reference to any other party tothe reference.

(5) If it appears to the comptroller on a reference under subsection (3) above that thequestion referred to him would more properly be determined by the court, he may decline todeal with it and the court shall have jurisdiction to determine the question as if the referencewere proceedings brought in the court.

(6) Subject to the following provisions of this Part of this Act, in determining whether ornot to grant any kind of relief claimed under this section and the extent of the relief grantedthe court or the comptroller shall apply the principles applied by the court in relation to thatkind of relief immediately before the appointed day.

64 Right to continue use begun before priority date[(1) Where a patent is granted for an invention, a person who in the United Kingdom

before the priority date of the invention—

14 Patents Act 1977

(a) does in good faith an act which would constitute an infringement of the patent ifit were in force, or

(b) makes in good faith effective and serious preparations to do such an act,has the right to continue to do the act or, as the case may be, to do the act, notwithstandingthe grant of the patent; but this right does not extend to granting a licence to another personto do the act.

(2) If the act was done, or the preparations were made, in the course of a business, theperson entitled to the right conferred by subsection (1) may—

(a) authorise the doing of that act by any partners of his for the time being in thatbusiness, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on itsdissolution), to any person who acquires that part of the business in the course ofwhich the act was done or the preparations were made.

(3) Where a product is disposed of to another in exercise of the rights conferred bysubsection (1) or (2), that other and any person claiming through him may deal with theproduct in the same way as if it had been disposed of by the registered proprietor ofthe patent.]

66 Proceedings infringement by a co-owner(1) In the application of section 60 above to a patent of which there are two or more joint

proprietors the reference to the proprietor shall be construed—(a) in relation to any act, as a reference to that proprietor or those proprietors who, by

virtue of section 36 above or any agreement referred to in that section, is or areentitled to do that act without its amounting to an infringement; and

(b) in relation to any consent, as a reference to that proprietor or those proprietorswho, by virtue of section 36 above or any such agreement, is or are the properperson or persons to give the requisite consent.

(2) One of two or more joint proprietors of a patent may without the concurrence of theothers bring proceedings in respect of an act alleged to infringe the patent, but shall not do sounless the others are made parties to the proceedings; but any of the others made a defendantor defender shall not be liable for any costs or expenses unless he enters an appearance andtakes part in the proceedings.

67 Proceedings for infringement by exclusive licensee(1) Subject to the provisions of this section, the holder of an exclusive licence under a

patent shall have the same right as the proprietor of the patent to bring proceedings in respectof any infringement of the patent committed after the date of the licence; and references tothe proprietor of the patent in the provisions of this Act relating to infringement shall beconstrued accordingly.

(2) In awarding damages or granting any other relief in any such proceedings the court orthe comptroller shall take into consideration any loss suffered or likely to be suffered by theexclusive licensee as such as a result of the infringement, or, as the case may be, the profitsderived from the infringement, so far as it constitutes an infringement of the rights of theexclusive licensee as such.

(3) In any proceedings taken by an exclusive licensee by virtue of this section theproprietor of the patent shall be made a party to the proceedings, but if made a defendant ordefender shall not be liable for any costs or expenses unless he enters an appearance and takespart in the proceedings.

70 Remedy for groundless threats of infringement proceedings(1) Where a person (whether or not the proprietor of, or entitled to any right in, a patent)

by circulars, advertisements or otherwise threatens another person with proceedings for anyinfringement of a patent, a person aggrieved by the threats (whether or not he is the person to

Patents Act 1977 15

whom the threats are made) may, subject to subsection (4) below, bring proceedings in thecourt against the person making the threats, claiming any relief mentioned in subsection (3)below.

(2) In any such proceedings the plaintiff or pursuer shall, if he proves that the threatswere so made and satisfies the court that he is a person aggrieved by them, be entitled to therelief claimed unless—

(a) the defendant or defender proves that the acts in respect of which proceedingswere threatened constitute or, if done, would constitute an infringement of apatent; and

(b) the patent alleged to be infringed is not shown by the plaintiff or pursuer to beinvalid in a relevant respect.

(3) The said relief is—(a) a declaration or declarator to the effect that the threats are unjustifiable;(b) an injunction or interdict against the continuance of the threats; and(c) damages in respect of any loss which the plaintiff or pursuer has sustained by the

threats.(4) Proceedings may not be brought under this section for a threat to bring proceedings

for an infringement alleged to consist of making or importing a product for disposal or ofusing a process.

(5) It is hereby declared that a mere notification of the existence of a patent does notconstitute a threat of proceedings within the meaning of this section.

Revocation of patents

72 Power to revoke patents on application(1) Subject to the following provisions of this Act, the court or the comptroller may on

the application of any person by order revoke a patent for an invention on (but only on) anyof the following grounds, that is to say—

(a) the invention is not a patentable invention;[(b) that the patent was granted to a person who was not entitled to be granted that

patent;](c) the specification of the patent does not disclose the invention clearly

enough and completely enough for it to be performed by a person skilled inthe art;

(d) the matter disclosed in the specification of the patent extends beyond that dis-closed in the application for the patent, as filed, or, if the patent was granted on anew application filed under section 8(3), 12 or 37(4) above or as mentioned insection 15(4) above, in the earlier application, as filed;

(e) the protection conferred by the patent has been extended by an amendmentwhich should not have been allowed.

(2) An application for the revocation of a patent on the ground mentioned in subsection(1)(b) above—

(a) may only be made by a person found by the court in an action for a declaration ordeclarator, or found by the court or the comptroller on a reference under section37 above, to be entitled to be granted that patent or to be granted a patent for partof the matter comprised in the specification of the patent sought to be revoked;and

(b) may not be made if that action was commenced or that reference was made afterthe end of the period of two years beginning with the date of the grant of thepatent sought to be revoked, unless it is shown that any person registered as aproprietor of the patent knew at the time of the grant or of the transfer of thepatent to him that he was not entitled to the patent.

16 Patents Act 1977

(3) . . .(4) An order under this section may be an order for the unconditional revocation of the

patent or, where the court or the comptroller determines that one of the grounds mentionedin subsection (1) above has been established, but only so as to invalidate the patent to alimited extent, an order that the patent should be revoked unless within a specified timethe specification is amended under section 75 below to the satisfaction of the court or thecomptroller, as the case may be.

(5) A decision of the comptroller or on appeal from the comptroller shall not estop anyparty to civil proceedings in which infringement of a patent is in issue from alleging invalidityof the patent on any of the grounds referred to in subsection (1) above, whether or not any ofthe issues involved were decided in the said decision.

(6) Where the comptroller refuses to grant an application made to him by anyperson under this section, no application (otherwise than by way of appeal or by wayof putting validity in issue in proceedings for infringement) may be made to the courtby that person under this section in relation to the patent concerned, without the leave of thecourt.

(7) Where the comptroller has not disposed of an application made to him under thissection, the applicant may not apply to the court under this section in respect of the patentconcerned unless either—

(a) the proprietor of the patent agrees that the applicant may so apply, or(b) the comptroller certifies in writing that it appears to him that the question

whether the patent should be revoked is one which would more properly bedetermined by the court.

73 Comptroller’s power to revoke patents on his own initiative(1) If it appears to the comptroller that an invention for which a patent has been granted

formed part of the state of the art by virtue only of section 2(3) above, he may on his owninitiative by order revoke the patent, but shall not do so without giving the proprietor of thepatent an opportunity of making any observations and of amending the specification of thepatent so as to exclude any matter which formed part of the state of the art as aforesaidwithout contravening section 76 below.

Putting validity in issue

74 Proceedings in which validity of patent may be put in issue(1) Subject to the following provisions of this section, the validity of a patent may be put

in issue—(a) by way of defence, in proceedings for infringement of the patent under section 61

above or proceedings under section 69 above for infringment of rights conferredby the publication of an application;

(b) in proceedings under section 70 above;(c) in proceedings in which a declaration in relation to the patent is sought under

section 71 above;(d) in proceedings before the court or the comptroller under section 72 above for the

revocation of the patent;(e) in proceedings under section 58 above.

(2) The validity of a patent may not be put in issue in any other proceedings and, inparticular, no proceedings may be instituted (whether under this Act or otherwise) seekingonly a declaration as to the validity or invalidity of a patent.

(3) The only grounds on which the validity of a patent may be put in issue (whether inproceedings for revocation under section 72 above or otherwise) are the grounds on which thepatent may be revoked under that section.

Patents Act 1977 17

PART III MISCELLANEOUS AND GENERAL

Supplemental

125 Extent of invention(1) For the purposes of this Act an invention for a patent for which an application has

been made or for which a patent has been granted shall, unless the context otherwise requires,be taken to be that specified in a claim of the specification of the application or patent,as the case may be, as interpreted by the description and any drawings contained in thatspecification, and the extent of the protection conferred by a patent or application for a patentshall be determined accordingly.

(2) It is hereby declared for the avoidance of doubt that where more than one invention isspecified in any such claim, each invention may have a different priority date under section 5above.

(3) The Protocol on the Interpretation of Article 69 of the European Patent Convention(which Article contains a provision corresponding to subsection (1) above) shall, as for thetime being in force, apply for the purposes of subsection (1) above as it applies for the purposesof that Article.

130 Interpretation*(1) In this Act, except so far as the context otherwise requires—‘comptroller’ means the Comptroller-General of Patents, Designs and Trade Marks;‘Convention on International Exhibitions’ means the Convention relating to Inter-

national Exhibitions signed in Paris on 22nd November 1928, as amended or supplementedby any protocol to that convention which is for the time being in force;

‘court’ means[(a) as respects England and Wales, the High Court or any patents county court having

jurisdiction by virtue of an order under section 287 of the Copyright, Designs andPatents Act 1988;]

(b) as respects Scotland, the Court of Session;(c) as respects Northern Ireland, the High Court in Northern Ireland:

‘date of filing’ means—(a) in relation to an application for a patent made under this Act, the date which is

the date of filing that application by virtue of section 15 above; and(b) in relation to any other application, the date which, under the law of the country

where the application was made or in accordance with the terms of a treaty orconvention to which that country is a party, is to be treated as the date of filingthat application or is equivalent to the date of filing an application in that country(whatever the outcome of the application);

‘employee’ means a person who works or (where the employment has ceased) workedunder a contract of employment or in employment under or for the purposes of a governmentdepartment [or a person who serves (or served) in the naval, military or air forces of theCrown];

‘employer’, in relation to an employee, means the person by whom the employee is orwas employed;

‘exclusive licence’ means a licence from the proprietor of or applicant for a patent con-ferring on the licensee, or on him and persons authorised by him, to the exclusion of all otherpersons (including the proprietor or applicant), any right in respect of the invention to whichthe patent or application relates, and ‘exclusive licensee’ and ‘non-exclusive licence’ shall beconstrued accordingly;

* Selected definitions only included here.

18 Patents Act 1977

‘international exhibition’ means an official or officially recognised internationalexhibition falling within the terms of the Convention on International Exhibitions or fallingwithin the terms of any subsequent treaty or convention replacing that convention;

‘inventor’ has the meaning assigned to it by section 7 above;‘patent’ means a patent under this Act;‘patented invention’ means an invention for which a patent is granted and ‘patented

process’ shall be construed accordingly;‘patented product’ means a product which is a patented invention or, in relation to a

patented process, a product obtained directly by means of the process or to which the processhas been applied;

‘priority date’ means the date determined as such under section 5 above;‘published’ means made available to the public (whether in the United Kingdom

or elsewhere) and a document shall be taken to be published under any provision of thisAct if it can be inspected as of right at any place in the United Kingdom by membersof the public, whether on payment of a fee or not; and ‘republished’ shall be construedaccordingly; . . .

Protection of Children Act 1978(1978, c. 37)

An Act to prevent the exploitation of children by making indecent photographs of them; and

to penalise the distribution, showing and advertisement of such indecent photographs.

[20th July 1978]

1 Indecent photographs of children(1) It is an offence for a person—

(a) to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child . . . ; or

(b) to distribute or show such indecent photographs [or pseudo-photographs];or

(c) to have in his possession such indecent photographs [or pseudo-photographs],with a view to their being distributed or shown by himself or others; or

(d) to publish or cause to be published any advertisement likely to be understoodas conveying that the advertiser distributes or shows such indecent photographs[or pseudo-photographs], or intends to do so.

(2) For purposes of this Act, a person is to be regarded as distributing an indecent photo-graph [or pseudo-photograph] if he parts with possession of it to, or exposes or offers it foracquisition by, another person.

(3) Proceedings for an offence under this Act shall not be instituted except by or with theconsent of the Director of Public Prosecutions.

(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be adefence for him to prove—

(a) that he had a legitimate reason for distributing or showing the photographs [orpseudo-photographs] or (as the case may be) having them in his possession; or

(b) that he had not himself seen the photographs [or pseudo-photographs] and didnot know, nor had any cause to suspect, them to be indecent.

(5) References in the Children and Young Persons Act 1933 (except in sections 15 and 99)to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection(1)(a) above.

(6) . . .

Protection of Children Act 1978 19

6 Punishments(1) Offences under this Act shall be punishable either on conviction on indictment or on

summary conviction.(2) A person convicted on indictment of any offence under this Act shall be liable to

imprisonment for a term of not more than [ten*] years, or to a fine or to both.(3) A person convicted summarily of any offence under this Act shall be liable—

(a) to imprisonment for a term not exceeding six months; or(b) to a fine not exceeding the prescribed sum for the purposes of [section 32 of the

Magistrates’ Courts Act 1980] (punishment on summary conviction of offencestriable either way: £1,000 or other sum substituted by order under that Act), or toboth.

7 Interpretation(1) The following subsections apply for the interpretation of this Act.(2) References to an indecent photograph include an indecent film, a copy of an indecent

photograph or film, and an indecent photograph comprised in a film.(3) Photographs (including those comprised in a film) shall, if they show children and

are indecent, be treated for all purposes of this Act as indecent photographs of children [and soas respects pseudo-photographs].

[(4) References to a photograph include—(a) the negative as well as the positive version; and(b) data stored on a computer disc or by other electronic means which is capable of

conversion into a photograph.](5) ‘Film’ includes any form of video-recording.[(6) ‘Child’, subject to subsection (8), means a person under the age of 16.(7) ‘Pseudo-photograph’ means an image, whether made by computer-graphics or

otherwise howsoever, which appears to be a photograph.(8) If the impression conveyed by a pseudo-photograph is that the person shown is a

child, the pseudo-photograph shall be treated for all purposes of this Act as showing a childand so shall a pseudo-photograph where the predominant impression conveyed is that theperson shown is a child notwithstanding that some of the physical characteristics shown arethose of an adult.

(9) References to an indecent pseudo-photograph include—(a) a copy of an indecent pseudo-photograph; and(b) data stored on a computer disc or by other electronic means which is capable of

conversion into a pseudo-photograph.]

Indecent Displays (Control) Act 1981(1981, c. 42)

An Act to make fresh provision with respect to the public display of indecent matter; and for

purposes connected therewith. [27th July 1981]

1 Indecent displays(1) If any indecent matter is publicly displayed the person making the display and any

person causing or permitting the display to be made shall be guilty of an offence.(2) Any matter which is displayed in or so as to be visible from any public place shall, for

the purposes of this section, be deemed to be publicly displayed.

* In force 11 January 2001, see SI 2000/3302 r. 2(a).

20 Indecent Displays (Control) Act 1981

(3) In subsection (2) above, ‘public place’, in relation to the display of any matter, meansany place to which the public have or are permitted to have access (whether on payment orotherwise) while that matter is displayed except—

(a) a place to which the public are permitted to have access only on payment which isor includes payment for that display; or

(b) a shop or any part of a shop to which the public can only gain access by passingbeyond an adequate warning notice;

but the exclusions contained in paragraphs (a) and (b) above shall only apply where personsunder the age of 18 years are not permitted to enter while the display in question iscontinuing.

(4) Nothing in this section applies in relation to any matter—[(a) included by any person in a television broadcasting service or other tele-

vision programme service (within the meaning of Part I of the Broadcasting Act1990);]

(b) included in the display of an art gallery or museum and visible only from withinthe gallery or museum; or

(c) displayed by or with the authority of, and visible only from within a buildingoccupied by, the Crown or any local authority; or

(d) included in a performance of a play (within the meaning of the Theatres Act1968); or

[[(e)included in a film exhibition as defined in the Cinemas Act 1985—(i) given in a place which as regards that exhibition is required to be licensed

under section 1 of that Act or by virtue only of section 5, 7 or 8 of that Act isnot required to be so licensed; or

(ii) which is an exhibition to which section 6 of that Act applies given by anexempted organisation as defined in subsection (6) of that section].

(5) In this section ‘matter’ includes anything capable of being displayed, except that itdoes not include an actual human body or any part thereof; and in determining for thepurpose of this section whether any displayed matter is indecent—

(a) there shall be disregarded any part of that matter which is not exposed to view;and

(b) account may be taken of the effect of juxtaposing one thing with another.(6) A warning notice shall not be adequate for the purposes of this section unless it

complies with the following requirements—(a) The warning notice must contain the following words, and no others—

‘WARNINGPerson passing beyond this notice will find material on display which they mayconsider indecent. No admittance to person under 18 years of age.’

(b) The word ‘WARNING’ must appear as a heading.(c) No pictures or other matter shall appear on the notice.(d) The notice must be so situated that no one could reasonably gain access to the

shop or part of the shop in question without being aware of the notice and it mustbe easily legible by any person gaining such access.

4 Penalties(1) In England and Wales, any person guilty of an offence under this Act shall be

liable—(a) on summary conviction, to a fine not exceeding the statutory maximum; or(b) on conviction on indictment, to imprisonment for a term not exceeding two years

or a fine or both.(2) In Scotland, any person guilty of an offence under this Act shall be liable—

(a) on summary conviction—

Indecent Displays (Control) Act 1981 21

(i) in the district court, to a fine not exceeding £200;(ii) in the sheriff court, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two yearsor a fine or both.

Civic Government (Scotland) Act 1982(1982, c. 45)

An Act to make provision as regards Scotland . . . for prohibiting the taking of and dealing with

indecent photographs of children; . . . and for connected purposes. [28th October 1982]

PART IV OFFENCES, POWERS OF CONSTABLES, ETC.

Offences of annoying, offensive, obstructive or dangerous behaviour

52A Possession of indecent photographs of children(1) It is an offence for a person to have any indecent photograph [or pseudo-photograph]

of a child in his possession.(2) Where a person is charged with an offence under subsection (1), it shall be a defence

for him to prove—(a) that he had a legitimate reason for having the photograph [or pseudo-

photograph] in his possession; or(b) that he had not himself seen the photograph or [pseudo-photograph] and did not

know, nor had any cause to suspect, it to be indecent; or(c) that the photograph [or pseudo-photograph] was sent to him without any

prior request made by him or on his behalf and that he did not keep it for anunreasonable time.

(3) A person shall be liable on summary conviction of an offence under this section to[imprisonment for a period not exceeding 6 months or to] a fine not exceeding level 5 on thestandard scale or to both.

Telecommunications Act 1984(1984, c. 12)

An Act to . . . make new provision with respect to the provision of telecommunication services and

certain related services . . . [12th April 1984]

PART II PROVISION OF TELECOMMUNICATION SERVICES

Offences

42 Fraudulent use of telecommunication system(1) A person who dishonestly obtains a [service to which this subsection applies] with

intent to avoid payment of any charge applicable to the provision of that service shall beguilty of an offence and liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months orto a fine not exceeding the statutory maximum or to both;

22 Civic Government (Scotland) Act 1982

(b) on conviction on indictment, to imprisonment for a term not exceeding [fiveyears] or to a fine or to both.

(2) [Subsection (1) above applies to any service (other than a service [such as is mentionedin section 297(1) of the Copyright, Designs and Patents Act 1988)] which is provided bymeans of] a telecommunication system the running of which is authorised by a licencegranted under section 7 above.

[42A Possession or supply for fraudulent purpose(1) Subsection (2) below applies if a person has in his custody or under his control

anything [(other than an unauthorised decoder as defined in section 297A(4) of theCopyright, Designs and Patents Act 1988)] which may be used for the purpose of obtaining,or for a purpose connected with the obtaining of, a service to which section 42(1) aboveapplies.

(2) If the person intends—(a) to use the thing—

(i) to obtain such a service dishonestly, or(ii) for a purpose connected with the dishonest obtaining of such a service,

(b) dishonestly to allow the thing to be used to obtain such a service, or(c) to allow the thing to be used for a purpose connected with the dishonest obtaining

of such a service,he shall be guilty of an offence.

(3) Subsection (4) below applies if a person supplies or offers to supply anything [(otherthan an unauthorised decoder as defined in section 297A(4) of the Copyright, Designs andPatents Act 1988)] which may be used for the purpose of obtaining, or for a purpose connectedwith the obtaining of, a service to which section 42(1) above applies.

(4) If the person supplying or offering to supply the thing knows or believes that theperson to whom it is supplied or offered intends or intends if it is supplied to him—

(a) to use it—(i) to obtain such a service dishonestly, or(ii) for a purpose connected with the dishonest obtaining of such a service,

(b) dishonestly to allow it to be used to obtain such a service, or(c) to allow it to be used for a purpose connected with the dishonest obtaining of such

a service,he shall be guilty of an offence.

(5) A person guilty of an offence under this section shall be liable—(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) on conviction on indictment, to imprisonment for a term not exceeding five years

or to a fine or to both.(6) In this section, references to use of a thing include, in the case of a thing which is used

to record any data, use of any of the data.]

43 Improper use of public telecommunication system(1) A person who—

(a) sends, by means of a public telecommunication system, a message or other matterthat is grossly offensive or of an indecent, obscene or menacing character; or

(b) sends by those means, for the purpose of causing annoyance, inconvenience orneedless anxiety to another, a message that he knows to be false or persistentlymakes use for that purpose of a public telecommunication system,

shall be guilty of an offence and liable on summary conviction to [imprisonment for a termnot exceeding six months or a fine not exceeding level 5 on the standard scale or both].

(2) Subsection (1) above does not apply to anything done in the course of providing a[programme service (within the meaning of the Broadcasting Act 1990)] . . .

Telecommunications Act 1984 23

Criminal Justice Act 1988(1988, c. 33)

An Act to . . . create a summary offence of possession of an indecent photograph of a child . . .

[29th July 1988]

PART XI MISCELLANEOUS

160 Summary offence of possession of indecent photograph of child*(1) It is an offence for a person to have any indecent photograph [or pseudo-photograph]

of a child . . . in his possession.(2) Where a person is charged with an offence under subsection (1) above, it shall be a

defence for him to prove—(a) that he had a legitimate reason for having the photograph [or pseudo-

photograph] in his possession; or(b) that he had not himself seen the photograph [or pseudo-photograph] and did not

know, nor had any cause to suspect, it to be indecent; or(c) that the photograph [or pseudo-photograph] was sent to him without any

prior request made by him or on his behalf and that he did not keep it for anunreasonable time.

[(2A) A person shall be liable on conviction on indictment of an offence under thissection to imprisonment for a term not exceeding five years or a fine, or both.]

(3) A person shall be liable on summary conviction of an offence under this section to[imprisonment for a term not exceeding six months or] a fine not exceeding level 5 on thestandard scale[, or both].

(4) Sections 1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 shall have effect as ifany reference in them to that Act included a reference to this section.

(5) . . .

Copyright Designs and Patents Act 1988(1988, c. 48)

An Act to restate the law of copyright, with amendments; to make fresh provision as to the rights of

performers and others in performances; . . . and for connected purposes. [15th November 1988]

PART I COPYRIGHT

CHAPTER I SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Introductory

1 Copyright and copyright works(1) Copyright is a property right which subsists in accordance with this Part in the

following descriptions of work—(a) original literary, dramatic, musical or artistic works,(b) sound recordings, films, broadcasts or cable programmes, and(c) the typographical arrangement of published editions.

(2) In this Part ‘copyright work’ means a work of any of those descriptions in whichcopyright subsists.

* The text as amended was in force on 11 January 2001: see SI 2000/3302.

24 Criminal Justice Act 1988

(3) Copyright does not subsist in a work unless the requirements of this Part with respectto qualification for copyright protection are met (see section 153 and the provisions referredto there).

2 Rights subsisting in copyright works(1) The owner of the copyright in a work of any description has the exclusive right to do

the acts specified in Chapter II as the acts restricted by the copyright in a work of thatdescription.

(2) In relation to certain descriptions of copyright work the following rights conferred byChapter IV (moral rights) subsist in favour of the author, director or commissioner of thework, whether or not he is the owner of the copyright—

(a) section 77 (right to be identified as author or director),(b) section 80 (right to object to derogatory treatment of work), and(c) section 85 (right to privacy of certain photographs and films).

Descriptions of work and related provisions

3 Literary, dramatic and musical works*(1) In this Part—‘literary work’ means any work, other than a dramatic or musical work, which is written,

spoken or sung, and accordingly includes—(a) a table or compilation [other than a database],(b) a computer program,[(c) preparatory design material for a computer program, and(d) a database];

‘dramatic work’ includes a work of dance or mime; and‘musical work’ means a work consisting of music, exclusive of any words or action

intended to be sung, spoken or performed with the music.(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is

recorded, in writing or otherwise; and references in this Part to the time at which such a workis made are to the time at which it is so recorded.

(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by orwith the permission of the author; and where it is not recorded by the author, nothing in thatsubsection affects the question whether copyright subsists in the record as distinct from thework recorded.

[3A Databases(1) In this Part ‘database’ means a collection of independent works, data or other

materials which—(a) are arranged in a systematic or methodical way, and(b) are individually accessible by electronic or other means.

(2) For the purposes of this Part a literary work consisting of a database is original if, andonly if, by reason of the selection or arrangement of the contents of the database the databaseconstitutes the author’s own intellectual creation.]

4 Artistic works(1) In this Part ‘artistic work’ means—

(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality;(b) a work of architecture being a building or a model for a building, or(c) a work of artistic craftsmanship.

* The amendments to s. 3, and the insertion of s. 3A, were in force on 1 January 1998: see SI 1997/3032r. 1.

Copyright Designs and Patents Act 1988 25

(2) In this Part—‘building’ includes any fixed structure, and a part of a building or fixed structure;‘graphic work’ includes—

(a) any painting, drawing, diagram, map, chart or plan, and(b) any engraving, etching, lithograph, woodcut or similar work;

‘photograph’ means a recording of light or other radiation on any medium on which animage is produced or from which an image may by any means be produced, and which is notpart of a film;

‘sculpture’ includes a cast or model made for purposes of sculpture.

5A Sound recordings(1) In this Part ‘sound recording’ means—

(a) a recording of sounds, from which the sounds may be reproduced, or(b) a recording of the whole or any part of a literary, dramatic or musical work, from

which sounds reproducing the work or part may be produced,regardless of the medium on which the recording is made or the method by which the soundsare reproduced or produced.

(2) Copyright does not subsist in a sound recording which is, or to the extent that it is, acopy taken from a previous sound recording.

5B Films(1) In this Part ‘film’ means a recording on any medium from which a moving image

may by any means be produced.(2) The sound track accompanying a film shall be treated as part of the film for the

purposes of this Part.(3) Without prejudice to the generality of subsection (2), where that subsection applies—

(a) references in this Part to showing a film include playing the film sound track toaccompany the film, and

(b) references to playing a sound recording do not include playing the film soundtrack to accompany the film.

(4) Copyright does not subsist in a film which is, or to the extent that it is, a copy takenfrom a previous film.

(5) Nothing in this section affects any copyright subsisting in a film sound track as asound recording.

6 Broadcasts(1) In this Part a ‘broadcast’ means a transmission by wireless telegraphy of visual

images, sounds or other information which—(a) is capable of being lawfully received by members of the public, or(b) is transmitted for presentation to members of the public;

and references to broadcasting shall be construed accordingly.(2) An encrypted transmission shall be regarded as capable of being lawfully received by

members of the public only if decoding equipment has been made available to members of thepublic by or with the authority of the person making the transmission or the person providingthe contents of the transmission.

(3) References in this Part to the person making a broadcast, broadcasting a work, orincluding a work in a broadcast are—

(a) to the person transmitting the programme, if he has responsibility to any extentfor its contents, and

(b) to any person providing the programme who makes with the person transmittingit the arrangements necessary for its transmission;

and references in this Part to a programme, in the context of broadcasting, are to any itemincluded in a broadcast.

26 Copyright Designs and Patents Act 1988

[(4) For the purposes of this Part, the place from which a broadcast is made is the placewhere, under the control and responsibility of the person making the broadcast, theprogramme-carrying signals are introduced into an uninterrupted chain of communication(including, in the case of a satellite transmission, the chain leading to the satellite and downtowards the earth).

(4A) Subsections (3) and (4) have effect subject to section 6A (safeguards in case of certainsatellite broadcasts).]

(5) References in this Part to the reception of a broadcast include reception of a broadcastrelayed by means of a telecommunications system.

(6) Copyright does not subsist in a broadcast which infringes, or to the extent that itinfringes, the copyright in another broadcast or in a cable programme.

[6A Safeguards in case of certain satellite broadcasts(1) This section applies where the place from which a broadcast by way of satellite trans-

mission is made is located in a country other than an EEA State and the law of that countryfails to provide at least the following level of protection—

(a) exclusive rights in relation to broadcasting equivalent to those conferred bysection 20 (infringement by broadcasting) on the authors of literary, dramatic,musical and artistic works, films and broadcasts;

(b) a right in relation to live broadcasting equivalent to that conferred on a performerby section 182(1)(b) (consent required for live broadcast of performance); and

(c) a right for authors of sound recordings and performers to share in a singleequitable remuneration in respect of the broadcasting of sound recordings.

(2) Where the place from which the programme-carrying signals are transmitted to thesatellite (‘the uplink station’) is located in an EEA State—

(a) that place shall be treated as the place from which the broadcast is made, and(b) the person operating the uplink station shall be treated as the person making the

broadcast.(3) Where the uplink station is not located in an EEA State but a person who is established

in an EEA State has commissioned the making of the broadcast—(a) that person shall be treated as the person making the broadcast, and(b) the place in which he has his principal establishment in the European Economic

Area shall be treated as the place from which the broadcast is made.]

7 Cable programmes(1) In this Part—‘cable programme’ means any item included in a cable programme service; and‘cable programme service’ means a service which consists wholly or mainly in sending

visual images, sounds or other information by means of a telecommunications system,otherwise than by wireless telegraphy, for reception—

(a) at two or more places (whether for simultaneous reception or at different times inresponse to requests by different users), or

(b) for presentation to members of the public,and which is not, or so far as it is not, excepted by or under the following provisions of thissection.

(2) The following are excepted from the definition of ‘cable programme service’—(a) a service or part of a service of which it is an essential feature that while visual

images, sounds or other information are being conveyed by the person providingthe service there will or may be sent from each place of reception, by means of thesame system or (as the case may be) the same part of it, information (other thansignals sent for the operation or control of the service) for reception by the personproviding the service or other persons receiving it;

Copyright Designs and Patents Act 1988 27

(b) a service run for the purposes of a business where—(i) no person except the person carrying on the business is concerned in the

control of the apparatus comprised in the system,(ii) the visual images, sounds or other information are conveyed by the system

solely for purposes internal to the running of the business and not by way ofrendering a service or providing amenities for others, and

(iii) the system is not connected to any other telecommunications system;(c) a service run by a single individual where—

(i) all the apparatus comprised in the system is under his control,(ii) the visual images, sounds or other information conveyed by the system are

conveyed solely for domestic purposes of his, and(iii) the system is not connected to any other telecommunications system;

(d) services where—(i) all the apparatus comprised in the system is situated in, or connects, premises

which are in single occupation, and(ii) the system is not connected to any other telecommunications system,other than services operated as part of the amenities provided for residents orinmates of premises run as a business;

(e) services which are, or to the extent that they are, run for persons providing broad-casting or cable programme services or providing programmes for such services.

(3) The Secretary of State may by order amend subsection (2) so as to add or removeexceptions, subject to such transitional provision as appears to him to be appropriate.

(4) An order shall be made by statutory instrument; and no order shall be made unless adraft of it has been laid before and approved by resolution of each House of Parliament.

(5) References in this Part to the inclusion of a cable programme or work in a cableprogramme service are to its transmission as part of the service; and references to the personincluding it are to the person providing the service.

(6) Copyright does not subsist in a cable programme—(a) if it is included in a cable programme service by reception and immediate re-

transmission of a broadcast, or(b) if it infringes, or to the extent that it infringes, the copyright in another cable

programme or in a broadcast.

8 Published editions(1) In this Part ‘published edition’, in the context of copyright in the typographical

arrangement of a published edition, means a published edition of the whole or any part of oneor more literary, dramatic or musical works.

(2) Copyright does not subsist in the typographical arrangement of a published edition if,or to the extent that, it reproduces the typographical arrangement of a previous edition.

Authorship and ownership of copyright

9 Authorship of work(1) In this Part ‘author’, in relation to a work, means the person who creates it.(2) That person shall be taken to be—

[(aa) in the case of a sound recording, the producer;(ab) in the case of a film, the producer and the principal director;](b) in the case of a broadcast, the person making the broadcast (see section 6(3))

or, in the case of a broadcast which relays another broadcast by reception andimmediate re-transmission, the person making that other broadcast;

(c) in the case of a cable programme, the person providing the cable programmeservice in which the programme is included;

(d) in the case of the typographical arrangement of a published edition, the publisher.

28 Copyright Designs and Patents Act 1988

(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary forthe creation of the work are undertaken.

(4) For the purposes of this Part a work is of ‘unknown authorship’ if the identity of theauthor is unknown or, in the case of a work of joint authorship, if the identity of none ofthe authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown ifit is not possible for a person to ascertain his identity by reasonable inquiry; but if his identityis once known it shall not subsequently be regarded as unknown.

10 Works of joint authorship(1) In this Part a ‘work of joint authorship’ means a work produced by the collaboration

of two or more authors in which the contribution of each author is not distinct from that ofthe other author or authors.

[(1A) A film shall be treated as a work of joint authorship unless the producer and theprincipal director are the same person.]

(2) A broadcast shall be treated as a work of joint authorship in any case where more thanone person is to be taken as making the broadcast (see section 6(3)).

(3) References in this Part to the author of a work shall, except as otherwise provided, beconstrued in relation to a work of joint authorship as references to all the authors of the work.

11 First ownership of copyright(1) The author of a work is the first owner of any copyright in it, subject to the following

provisions.(2) Where a literary, dramatic, musical or artistic work [or a film] is made by an employee

in the course of his employment, his employer is the first owner of any copyright in the worksubject to any agreement to the contrary.

(3) This section does not apply to Crown copyright or Parliamentary copyright (seesections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright ofcertain international organisations).

[12 Duration of copyright in literary, dramatic, musical or artistic works(1) The following provisions have effect with respect to the duration of copyright in a

literary, dramatic, musical or artistic work.(2) Copyright expires at the end of the period of 70 years from the end of the calendar

year in which the author dies, subject as follows.(3) If the work is of unknown authorship, copyright expires—

(a) at the end of the period of 70 years from the end of the calendar year in which thework was made, or

(b) if during that period the work is made available to the public, at the end of theperiod of 70 years from the end of the calendar year in which it is first so madeavailable,

subject as follows.(4) Subsection (2) applies if the identity of the author becomes known before the end of

the period specified in paragraph (a) or (b) of subsection (3).(5) For the purposes of subsection (3) making available to the public includes—

(a) in the case of a literary, dramatic or musical work—(i) performance in public, or(ii) being broadcast or included in a cable programme service;

(b) in the case of an artistic work—(i) exhibition in public,(ii) a film including the work being shown in public, or(iii) being included in a broadcast or cable programme service;

Copyright Designs and Patents Act 1988 29

but in determining generally for the purposes of that subsection whether a work has beenmade available to the public no account shall be taken of any unauthorised act.

(6) Where the country of origin of the work is not an EEA state and the author of the workis not a national of an EEA state, the duration of copyright is that to which the work is entitledin the country of origin, provided that does not exceed the period which would apply undersubsection (2) to (5).

(7) If the work is computer-generated the above provisions do not apply and copyrightexpires at the end of the period of 50 years from the end of the calendar year in which thework was made.

(8) The provisions of this section are adapted as follows in relation to a work of jointauthorship—

(a) the reference in subsection (2) to the death of the author shall be construed—(i) if the identity of all the authors is known, as a reference to the death of the last

of them to die, and(ii) if the identity of one or more of the authors is known and the identity of one

or more others is not, as a reference to the death of the last whose identity isknown;

(b) the reference in subsection (4) to the identity of the author becoming knownshall be construed as a reference to the identity of any of the authors becomingknown;

(c) the reference in subsection (6) to the author not being a national of an EEA stateshall be construed as a reference to none of the authors being a national of an EEAstate.

(9) This section does not apply to Crown copyright or Parliamentary copyright (seesections 163 to [166B*]) or to copyright which subsists by virtue of section 168 (copyright ofcertain international organisations).]

[13A Duration of copyright in sound recordings(1) The following provisions have effect with respect to the duration of copyright in a

sound recording.(2) Copyright expires—

(a) at the end of the period of 50 years from the end of the calendar year in which it ismade, or

(b) if during that period it is released, 50 years from the end of the calendar year inwhich it is released;

subject as follows.(3) For the purposes of subsection (2) a sound recording is ‘released’ when it is first

published, played in public, broadcast or included in a cable programme service; but in deter-mining whether a sound recording has been released no account shall be taken of anyunauthorised act.

(4) Where the author of a sound recording is not a national of an EEA state, the durationof copyright is that to which the sound recording is entitled in the country of which theauthor is a national, provided that does not exceed the period which would apply undersubsections (2) and (3).

(5) If or to the extent that the application of subsection (4) would be at variance with aninternational obligation to which the United Kingdom became subject prior to 29th October1993, the duration of copyright shall be as specified in subsections (2) and (3).]

[13B Duration of copyright in films(1) The following provisions have effect with respect to the duration of copyright in a

film.

* In force 2 December 1999: see SI 1999/3209.

30 Copyright Designs and Patents Act 1988

(2) Copyright expires at the end of the period of 70 years from the end of the calendaryear in which the death occurs of the last to die of the following persons—

(a) the principal director,(b) the author of the screenplay,(c) the author of the dialogue, or(d) the composer of music specially created for and used in the film;

subject as follows.(3) If the identity of one or more of the persons referred to in subsection (2)(a) to (d) is

known and the identity of one or more others is not, the reference in that subsection to thedeath of the last of them to die shall be construed as a reference to the death of the last whoseidentity is known.

(4) If the identity of the persons referred to in subsection (2)(a) to (d) is unknown,copyright expires at—

(a) the end of the period of 70 years from the end of the calendar year in which thefilm was made, or

(b) if during that period the film is made available to the public, at the end of the periodof 70 years from the end of the calendar year in which it is first so made available.

(5) Subsections (2) and (3) apply if the identity of any of those persons becomes knownbefore the end of the period specified in paragraph (a) or (b) of subsection (4).

(6) For the purposes of subsection (4) making available to the public includes—(a) showing in public, or(b) being broadcast or included in a cable programme service;

but in determining generally for the purposes of that subsection whether a film has been madeavailable to the public no account shall be taken of any unauthorised act.

(7) Where the country of origin is not an EEA state and the author of the film is nota national of an EEA state, the duration of copyright is that to which the work is entitledin the country of origin, provided that does not exceed the period which would apply undersubsections (2) to (6).

(8) In relation to a film of which there are joint authors, the reference in subsection (7) tothe author not being a national of an EEA state shall be construed as a reference to none of theauthors being a national of an EEA state.

(9) If in any case there is no person falling within paragraphs (a) to (d) of subsection (2),the above provisions do not apply and copyright expires at the end of the period of 50 yearsfrom the end of the calendar year in which the film was made.

(10) For the purposes of this section the identity of any of the persons referred to insubsection (2)(a) to (d) shall be regarded as unknown if it is not possible for a person toascertain his identity by reasonable inquiry; but if the identity of any such person is onceknown it shall not subsequently be regarded as unknown.]

[14 Duration of copyright in broadcasts and cable programmes(1) The following provisions have effect with respect to the duration of copyright in a

broadcast or cable programme.(2) Copyright in a broadcast or cable programme expires at the end of the period of 50

years from the end of the calendar year in which the broadcast was made or the programmewas included in a cable programme service, subject as follows.

(3) Where the author of the broadcast or cable programme is not a national of an EEAstate, the duration of copyright in the broadcast or cable programme is that to which it isentitled in the country of which the author is a national, provided that does not exceed theperiod which would apply under subsection (2).

(4) If or to the extent that the application of subsection (3) would be at variance with aninternational obligation to which the United Kingdom became subject prior to 29th October1993, the duration of copyright shall be as specified in subsection (2).

Copyright Designs and Patents Act 1988 31

(5) Copyright in a repeat broadcast or cable programme expires at the same time as thecopyright in the original broadcast or cable programme; and accordingly no copyright arisesin respect of a repeat broadcast or cable programme which is broadcast or included in acable programme service after the expiry of the copyright in the original broadcast or cableprogramme.

(6) A repeat broadcast or cable programme means one which is a repeat either of a broad-cast previously made or of a cable programme previously included in a cable programmeservice.]

15 Duration of copyright in typographical arrangement of published editionsCopyright in the typographical arrangement of a published edition expires at the end of theperiod of 25 years from the end of the calendar year in which the edition was first published.

[15A Meaning of country of origin(1) For the purposes of the provisions of this Part relating to the duration of copyright the

country of origin of a work shall be determined as follows.(2) If the work is first published in a Berne Convention country and is not simultaneously

published elsewhere, the country of origin is that country.(3) If the work is first published simultaneously in two or more countries only one of

which is a Berne Convention country, the country of origin is that country.(4) If the work is first published simultaneously in two or more countries of which two or

more are Berne Convention countries, then—(a) if any of those countries is an EEA state, the country of origin is that country;

and(b) if none of those countries is an EEA state, the country of origin is the Berne

Convention country which grants the shorter or shortest period of copyrightprotection.

(5) If the work is unpublished or is first published in a country which is not a BerneConvention country (and is not simultaneously published in a Berne Convention country),the country of origin is—

(a) if the work is a film and the maker of the film has his headquarters in, or isdomiciled or resident in a Berne Convention country, that country;

(b) if the work is—(i) a work of architecture constructed in a Berne Convention country, or(ii) an artistic work incorporated in a building or other structure situated in a

Berne Convention country,that country;

(c) in any other case, the country of which the author of the work is a national.(6) In this section—

(a) a ‘Berne Convention country’ means a country which is a party to any Act of theInternational Convention for the Protection of Literary and Artistic Works signedat Berne on 9th September 1886; and

(b) references to simultaneous publication are to publication within 30 days of firstpublication.]

CHAPTER II RIGHTS OF COPYRIGHT OWNER

The acts restricted by copyright

16 The acts restricted by copyright in a work(1) The owner of the copyright in a work has, in accordance with the following provisions

of this Chapter, the exclusive right to do the following acts in the United Kingdom—(a) to copy the work (see section 17);(b) to issue copies of the work to the public (see section 18);

32 Copyright Designs and Patents Act 1988

[(ba) to rent or lend the work to the public (see section 18A);](c) to perform, show or play the work in public (see section 19);(d) to broadcast the work or include it in a cable programme service (see section 20);(e) to make an adaptation of the work or do any of the above in relation to an

adaptation (see section 21);and those acts are referred to in this Part as the ‘acts restricted by the copyright’.

(2) Copyright in a work is infringed by a person who without the licence of the copyrightowner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work areto the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and(b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.(4) This Chapter has effect subject to—

(a) the provisions of Chapter III (acts permitted in relation to copyright works), and(b) the provisions of Chapter VII (provisions with respect to copyright licensing).

17 Infringement of copyright by copying(1) The copying of the work is an act restricted by the copyright in every description of

copyright work; and references in this Part to copying and copies shall be construed as follows.(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing

the work in any material form.This includes storing the work in any medium by electronic means.

(3) In relation to an artistic work copying includes the making of a copy in threedimensions of a two-dimensional work and the making of a copy in two dimensions of athree-dimensional work.

(4) Copying in relation to a film, television broadcast or cable programme includesmaking a photograph of the whole or any substantial part of any image forming part of thefilm, broadcast or cable programme.

(5) Copying in relation to the typographical arrangement of a published edition meansmaking a facsimile copy of the arrangement.

(6) Copying in relation to any description of work includes the making of copies whichare transient or are incidental to some other use of the work.

18 Infringement by issue of copies to the public(1) The issue to the public of copies of the work is an act restricted by the copyright in

every description of copyright work.[(2) References in this Part to the issue to the public of copies of a work are to—

(a) the act of putting into circulation in the EEA copies not previously put intocirculation in the EEA by or with the consent of the copyright owner, or

(b) the act of putting into circulation outside the EEA copies not previously putinto circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a work do not include—(a) any subsequent distribution, sale, hiring or loan of copies previously put into

circulation (but see section 18A: infringement by rental or lending), or(b) any subsequent importation of such copies into the United Kingdom or another

EEA state,except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEAcopies previously put into circulation outside the EEA.

(4) References in this Part to the issue of copies of a work include the issue of the original.]

18A Infringement by rental or lending of work to the public[(1) The rental or lending of copies of the work to the public is an act restricted by the

copyright in—

Copyright Designs and Patents Act 1988 33

(a) a literary, dramatic or musical work,(b) an artistic work, other than—

(i) a work of architecture in the form of a building or a model for a building, or(ii) a work of applied art, or

(c) a film or a sound recording.(2) In this Part, subject to the following provisions of this section—

(a) ‘rental’ means making a copy of the work available for use, on terms that it willor may be returned, for direct or indirect economic or commercial advantage,and

(b) ‘lending’ means making a copy of the work available for use, on terms that it willor may be returned, otherwise than for direct or indirect economic or commercialadvantage, through an establishment which is accessible to the public.

(3) The expressions ‘rental’ and ‘lending’ do not include—(a) making available for the purpose of public performance, playing or showing in

public, broadcasting or inclusion in a cable programme service;(b) making available for the purpose of exhibition in public; or(c) making available for on-the-spot reference use.

(4) The expression ‘lending’ does not include making available between establishmentswhich are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a paymentthe amount of which does not go beyond what is necessary to cover the operating costsof the establishment, there is no direct or indirect economic or commercial advantage for thepurposes of this section.

(6) References in this Part to the rental or lending of copies of a work include the rental orlending of the original.]

19 Infringement by performance, showing or playing of work in public(1) The performance of the work in public is an act restricted by the copyright in a

literary, dramatic or musical work.(2) In this Part ‘performance’, in relation to a work—

(a) includes delivery in the case of lectures, addresses, speeches and sermons, and(b) in general, includes any mode of visual or acoustic presentation, including

presentation by means of a sound recording, film, broadcast or cable programmeof the work.

(3) The playing or showing of the work in public is an act restricted by the copyright in asound recording, film, broadcast or cable programme.

(4) Where copyright in a work is infringed by its being performed, played or shownin public by means of apparatus for receiving visual images or sounds conveyed byelectronic means, the person by whom the visual images or sounds are sent, and in the case ofa performance the performers, shall not be regarded as responsible for the infringement.

20 Infringement by broadcasting or inclusion in a cable programme serviceThe broadcasting of the work or its inclusion in a cable programme service is an act restrictedby the copyright in—

(a) a literary, dramatic, musical or artistic work,(b) a sound recording or film, or(c) a broadcast or cable programme.

21 Infringement by making adaptation or act done in relation to adaptation*(1) The making of an adaptation of the work is an act restricted by the copyright in a

literary, dramatic or musical work.

* The amended version of this section was in force on 1 January 1998: see SI 1997/3032.

34 Copyright Designs and Patents Act 1988

For this purpose an adaptation is made when it is recorded, in writing or otherwise.(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in

relation to an adaptation of the work is also an act restricted by the copyright in a literary,dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writing orotherwise, at the time the act is done.

(3) In this Part ‘adaptation’—(a) in relation to a literary [work, other than a computer program or a database, or in

relation to a] dramatic work, means—(i) a translation of the work;(ii) a version of a dramatic work in which it is converted into a non-dramatic work

or, as the case may be, of a non-dramatic work in which it is converted into adramatic work;

(iii) a version of the work in which the story or action is conveyed whollyor mainly by means of pictures in a form suitable for reproduction in abook, or in a newspaper, magazine or similar periodical;

[(ab) ‘in relation to a computer program, means an arrangement or altered version ofthe program or a translation of it;’

(ac) in relation to a database, means an arrangement or altered version of the databaseor a translation of it;]

(b) in relation to a musical work, means an arrangement or transcription of the work.(4) In relation to a computer program a ‘translation’ includes a version of the program in

which it is converted into or out of a computer language or code or into a different computerlanguage or code . . .

(5) No inference shall be drawn from this section as to what does or does not amount tocopying a work.

Secondary infringement of copyright

22 Secondary infringement: importing infringing copyThe copyright in a work is infringed by a person who, without the licence of the copyrightowner, imports into the United Kingdom, otherwise than for his private and domestic use, anarticle which is, and which he knows or has reason to believe is, an infringing copy of thework.

23 Secondary infringement: possessing or dealing with infringing copyThe copyright in a work is infringed by a person who, without the licence of the copyrightowner—

(a) possesses in the course of a business,(b) sells or lets for hire, or offers or exposes for sale or hire,(c) in the course of a business exhibits in public or distributes, or(d) distributes otherwise than in the course of a business to such an extent as to affect

prejudicially the owner of the copyright,an article which is, and which he knows or has reason to believe is, an infringing copy of thework.

24 Secondary infringement: providing means for making infringing copies(1) Copyright in a work is infringed by a person who, without the licence of the copyright

owner—(a) makes,(b) imports into the United Kingdom,(c) possesses in the course of a business, or(d) sells or lets for hire, or offers or exposes for sale or hire,

Copyright Designs and Patents Act 1988 35

an article specifically designed or adapted for making copies of that work, knowing or havingreason to believe that it is to be used to make infringing copies.

(2) Copyright in a work is infringed by a person who without the licence of the copyrightowner transmits the work by means of a telecommunications system (otherwise than bybroadcasting or inclusion in a cable programme service), knowing or having reason to believethat infringing copies of the work will be made by means of the reception of the transmissionin the United Kingdom or elsewhere.

25 Secondary infringement: permitting use of premises for infringingperformance

(1) Where the copyright in a literary, dramatic or musical work is infringed by a perfor-mance at a place of public entertainment, any person who gave permission for that place to beused for the performance is also liable for the infringement unless when he gave permissionhe believed on reasonable grounds that the performance would not infringe copyright.

(2) In this section ‘place of public entertainment’ includes premises which are occupiedmainly for other purposes but are from time to time made available for hire for the purposes ofpublic entertainment.

26 Secondary infringement: provision of apparatus for infringingperformance, etc.

(1) Where copyright in a work is infringed by a public performance of the work, or by theplaying or showing of the work in public, by means of apparatus for—

(a) playing sound recordings,(b) showing films, or(c) receiving visual images or sounds conveyed by electronic means,

the following persons are also liable for the infringement.(2) A person who supplied the apparatus, or any substantial part of it, is liable for the

infringement if when he supplied the apparatus or part—(a) he knew or had reason to believe that the apparatus was likely to be so used as to

infringe copyright, or(b) in the case of apparatus whose normal use involves a public performance, playing

or showing, he did not believe on reasonable grounds that it would not be so usedas to infringe copyright.

(3) An occupier of premises who gave permission for the apparatus to be brought onto thepremises is liable for the infringement if when he gave permission he knew or had reason tobelieve that the apparatus was likely to be so used as to infringe copyright.

(4) A person who supplied a copy of a sound recording or film used to infringe copyrightis liable for the infringement if when he supplied it he knew or had reason to believe that whathe supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringecopyright.

Infringing copies

27 Meaning of ‘infringing copy’(1) In this Part ‘infringing copy’, in relation to a copyright work, shall be construed in

accordance with this section.(2) An article is an infringing copy if its making constituted an infringement of the

copyright in the work in question.(3) An article is also an infringing copy if—

(a) it has been or is proposed to be imported into the United Kingdom, and(b) its making in the United Kingdom would have constituted an infringement of the

copyright in the work in question, or a breach of an exclusive licence agreementrelating to that work.

36 Copyright Designs and Patents Act 1988

(4) Where in any proceedings the question arises whether an article is an infringing copyand it is shown—

(a) that the article is a copy of the work, and(b) that copyright subsists in the work or has subsisted at any time,

it shall be presumed until the contrary is proved that the article was made at a time whencopyright subsisted in the work.

(5) Nothing in subsection (3) shall be construed as applying to an article which maylawfully be imported into the United Kingdom by virtue of any enforceable Community rightwithin the meaning of section 2(1) of the European Communities Act 1972.

(6) In this Part ‘infringing copy’ includes a copy falling to be treated as an infringingcopy by virtue of any of the following provisions—

section 32(5) (copies made for purposes of instruction or examination),section 35(3) (recordings made by educational establishments for educational purposes),section 36(5) (reprographic copying by educational establishments for purposes of

instruction),section 37(3)(b) (copies made by librarian or archivist in reliance on false declaration),section 56(2) (further copies, adaptations, &c. of work in electronic form retained on

transfer of principal copy),section 63(2) (copies made for purpose of advertising artistic work for sale),section 68(4) (copies made for purpose of broadcast or cable programme), orany provision of an order under section 141 (statutory licence for certain reprographic

copying by educational establishments).

CHAPTER III ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Introductory

28 Introductory provisions(1) The provisions of this Chapter specify acts which may be done in relation to copyright

works notwithstanding the subsistence of copyright; they relate only to the question ofinfringement of copyright and do not affect any other right or obligation restricting the doingof any of the specified acts.

(2) Where it is provided by this Chapter that an act does not infringe copyright, or maybe done without infringing copyright, and no particular description of copyright work ismentioned, the act in question does not infringe the copyright in a work of any description.

(3) No inference shall be drawn from the description of any act which may be virtue ofthis Chapter be done without infringing copyright as to the scope of the acts restricted by thecopyright in any description of work.

(4) The provisions of this Chapter are to be construed independently of each other, sothat the fact that an act does not fall within one provision does not mean that it is not coveredby another provision.

General

29 Research and private study*(1) Fair dealing with a literary [work, other than a database, or a] dramatic, musical or

artistic work for the purposes of research or private study does not infringe any copyright inthe work or, in the case of a published edition, in the typographical arrangement.

[(1A) Fair dealing with a database for the purposes of research or private study does notinfringe any copyright in the database provided that the source is indicated.]

* The amended version of this section was in force on 1 January 1998: see SI 1997/3032.

Copyright Designs and Patents Act 1988 37

(2) Fair dealing with the typographical arrangement of a published edition for thepurposes mentioned in subsection (1) does not infringe any copyright in the arrangement.

(3) Copying by a person other than the researcher or student himself is not fair dealingif—

(a) in the case of a librarian, or a person acting on behalf of a librarian, he doesanything which regulations under section 40 would not permit to be done undersection 38 or 39 (articles or parts of published works: restriction on multiple copiesof same material), or

(b) in any other case, the person doing the copying knows or has reason to believethat it will result in copies of substantially the same material being provided tomore than one person at substantially the same time and for substantially thesame purpose.

[(4) It is not fair dealing—(a) to convert a computer program expressed in a low level language into a version

expressed in a higher level language, or(b) incidentally in the course of so converting the program, to copy it,

(these acts being permitted if done in accordance with section 50B (decompilation)).(5) The doing of anything in relation to a database for the purposes of research for a

commercial purpose is not fair dealing with the database.]

30 Criticism, review and news reporting(1) Fair dealing with a work for the purpose of criticism or review, of that or another work

or of a performance of a work, does not infringe any copyright in the work provided that it isaccompanied by a sufficient acknowledgement.

(2) Fair dealing with a work (other than a photograph) for the purpose of reportingcurrent events does not infringe any copyright in the work provided that (subject tosubsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current eventsby means of a sound recording, film, broadcast or cable programme.

31 Incidental inclusion of copyright material(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work,

sound recording, film, broadcast or cable programme.(2) Nor is the copyright infringed by the issue to the public of copies, or the playing,

showing, broadcasting or inclusion in a cable programme service, of anything whose makingwas, by virtue of subsection (1), not an infringement of the copyright.

(3) A musical work, words spoken or sung with music, or so much of a sound recording,broadcast or cable programme as includes a musical work or such words, shall not be regardedas incidentally included in another work if it is deliberately included.

Computer programs: lawful users

[50A Back up copies(1) It is not an infringement of copyright for a lawful user of a copy of a computer

program to make any back up copy of it which it is necessary for him to have for the purposesof his lawful use.

(2) For the purposes of this section and sections 50B and 50C a person is a lawful user ofa computer program if (whether under a licence to do any acts restricted by the copyright inthe program or otherwise), he has a right to use the program.

(3) Where an act is permitted under this section, it is irrelevant whether or not thereexists any term or condition in an agreement which purports to prohibit or restrict the act(such terms being, by virtue of section 296A, void).

38 Copyright Designs and Patents Act 1988

50B Decompilation(1) It is not an infringement of copyright for a lawful user of a copy of a computer

program expressed in a low level language—(a) to convert it into a version expressed in a higher level language, or(b) incidentally in the course of so converting the program, to copy it,

(that is, to ‘decompile’ it), provided that the conditions in subsection (2) are met.(2) The conditions are that—

(a) it is necessary to decompile the program to obtain the information necessaryto create an independent program which can be operated with the programdecompiled or with another program (‘the permitted objective’); and

(b) the information so obtained is not used for any purpose other than the permittedobjective.

(3) In particular, the conditions in subsection (2) are not met if the lawfuluser—

(a) has readily available to him the information necessary to achieve the permittedobjective;

(b) does not confine the decompiling to such acts as are necessary to achieve thepermitted objective;

(c) supplies the information obtained by the decompiling to any person towhom it is not necessary to supply it in order to achieve the permitted objective;or

(d) uses the information to create a program which is substantially similarin its expression to the program decompiled or to do any act restricted bycopyright.

(4) Where an act is permitted under this section, it is irrelevant whether or not thereexists any term or condition in an agreement which purports to prohibit or restrict the act(such terms being, by virtue of section 296A, void).

50C Other acts permitted to lawful users(1) It is not an infringement of copyright for a lawful user of a copy of a computer

program to copy or adapt it, provided that the copying or adapting—(a) is necessary for his lawful use; and(b) is not prohibited under any term or condition of an agreement regulating the

circumstances in which his use is lawful.(2) It may, in particular, be necessary for the lawful use of a computer program to copy it

or adapt it for the purpose of correcting errors in it.(3) This section does not apply to any copying or adapting permitted under section 50A

or 50B.]

Databases: permitted acts

[50D Acts permitted in relation to databases*(1) It is not an infringement of copyright in a database for a person who has a right to use

the database or any part of the database, (whether under a licence to do any of the actsrestricted by the copyright in the database or otherwise) to do, in the exercise of that right,anything which is necessary for the purposes of access to and use of the contents of thedatabase or of that part of the database.

(2) Where an act which would otherwise infringe copyright in a database is permittedunder this section, it is irrelevant whether or not there exists any term or condition inany agreement which purports to prohibit or restrict the act (such terms being, by virtue ofsection 296B, void).]

* The new s. 50D was in force on 1 January 1998: see SI 1997/3032.

Copyright Designs and Patents Act 1988 39

Typefaces

54 Use of typeface in ordinary course of printing(1) It is not an infringement of copyright in an artistic work consisting of the design of a

typeface—(a) to use the typeface in the ordinary course of typing, composing text, typesetting

or printing,(b) to possess an article for the purpose of such use, or(c) to do anything in relation to material produced by such use;

and this is so notwithstanding that an article is used which is an infringing copy of thework.

(2) However, the following provisions of this Part apply in relation to persons making,importing or dealing with articles specifically designed or adapted for producing material ina particular typeface, or possessing such articles for the purpose of dealing with them, as if theproduction of material as mentioned in subsection (1) did infringe copyright in the artisticwork consisting of the design of the typeface—

section 24 (secondary infringement: making, importing, possessing or dealing with articlefor making infringing copy),

sections 99 and 100 (order for delivery up and right of seizure),section 107(2) (offence of making or possessing such an article), andsection 108 (order for delivery up in criminal proceedings).(3) The references in subsection (2) to ‘dealing with’ an article are to selling, letting for

hire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

Works in electronic form

56 Transfers of copies of works in electronic form(1) This section applies where a copy of a work in electronic form has been purchased

on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaserto copy the work, or to adapt it or make copies of an adaptation, in connection with his useof it.

(2) If there are no express terms—(a) prohibiting the transfer of the copy by the purchaser, imposing obligations which

continue after a transfer, prohibiting the assignment of any licence or terminatingany licence on a transfer, or

(b) providing for the terms on which a transferee may do the things which thepurchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement ofcopyright by a transferee; but any copy, adaptation or copy of an adaptation made by thepurchaser which is not also transferred shall be treated as an infringing copy for all purposesafter the transfer.

(3) The same applies where the original purchased copy is no longer usable and what istransferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution forreferences in subsection (2) to the purchaser of references to the subsequent transferor.

Miscellaneous: sound recordings, films and computer programs

67 Playing of sound recordings for purposes of club, society, etc.(1) It is not an infringement of the copyright in a sound recording to play it as part of

the activities of, or for the benefit of, a club, society or other organisation if the followingconditions are met.

(2) The conditions are—

40 Copyright Designs and Patents Act 1988

(a) that the organisation is not established or conducted for profit and its mainobjects are charitable or are otherwise concerned with the advancement ofreligion, education or social welfare, and

(b) that the proceeds of any charge for admission to the place where the recording isto be heard are applied solely for the purposes of the organisation.

Miscellaneous: broadcasts and cable programmes

70 Recording for purposes of time-shiftingThe making for private and domestic use of a recording of a broadcast or cable programmesolely for the purpose of enabling it to be viewed or listened to at a more convenient timedoes not infringe any copyright in the broadcast or cable programme or in any work includedin it.

71 Photographs of television broadcasts or cable programmesThe making for private and domestic use of a photograph of the whole or any part of an imageforming part of a television broadcast or cable programme, or a copy of such a photograph,does not infringe any copyright in the broadcast or cable programme or in any film includedin it.

72 Free public showing or playing of broadcast or cable programme(1) The showing or playing in public of a broadcast or cable programme to an audience

who have not paid for admission to the place where the broadcast or programme is to be seenor heard does not infringe any copyright in—

(a) the broadcast or cable programme, or(b) any sound recording or film included in it.

(2) The audience shall be treated as having paid for admission to a place—(a) if they have paid for admission to a place of which that place forms part; or(b) if goods or services are supplied at that place (or a place of which it forms part)—

(i) at prices which are substantially attributable to the facilities afforded forseeing or hearing the broadcast or programme, or

(ii) at prices exceeding those usually charged there and which are partlyattributable to those facilities.

(3) The following shall not be regarded as having paid for admission to a place—(a) persons admitted as residents or inmates of the place;(b) persons admitted as members of a club or society where the payment is only for

membership of the club or society and the provision of facilities for seeing orhearing broadcasts or programmes is only incidental to the main purposes of theclub or society.

(4) Where the making of the broadcast or inclusion of the programme in a cable pro-gramme service was an infringement of the copyright in a sound recording or film, the factthat it was heard or seen in public by the reception of the broadcast or programme shall betaken into account in assessing the damages for that infringement.

CHAPTER IV MORAL RIGHTS

Right to be identified as author or director

77 Right to be identified as author or director(1) The author of a copyright literary, dramatic, musical or artistic work, and the director

of a copyright film, has the right to be identified as the author or director of the work in thecircumstances mentioned in this section; but the right is not infringed unless it has beenasserted in accordance with section 78.

Copyright Designs and Patents Act 1988 41

(2) The author of a literary work (other than words intended to be sung or spoken withmusic) or a dramatic work has the right to be identified whenever—

(a) the work is published commercially, performed in public, broadcast or included ina cable programme service; or

(b) copies of a film or sound recording including the work are issued to the public;and that right includes the right to be identified whenever any of those events occur inrelation to an adaptation of the work as the author of the work from which the adaptation wasmade.

(3) The author of a musical work, or a literary work consisting of words intended to besung or spoken with music, has the right to be identified whenever—

(a) the work is published commercially;(b) copies of a sound recording of the work are issued to the public; or(c) a film of which the sound-track includes the work is shown in public or copies of

such a film are issued to the public;and that right includes the right to be identified whenever any of those events occur inrelation to an adaptation of the work as the author of the work from which the adaptation wasmade.

(4) The author of an artistic work has the right to be identified whenever—(a) the work is published commercially or exhibited in public, or a visual image of it is

broadcast or included in a cable programme service;(b) a film including a visual image of the work is shown in public or copies of such a

film are issued to the public; or(c) in the case of a work of architecture in the form of a building or a model for a

building, a sculpture or a work of artistic craftsmanship, copies of a graphic workrepresenting it, or of a photograph of it, are issued to the public.

(5) The author of a work of architecture in the form of a building also has the right to beidentified on the building as constructed or, where more than one building is constructed tothe design, on the first to be constructed.

(6) The director of a film has the right to be identified whenever the film is shown inpublic, broadcast or included in a cable programme service or copies of the film are issuedto the public.

(7) The right of the author or director under this section is—(a) in the case of commercial publication or the issue to the public of copies of a film

or sound recording, to be identified in or on each copy or, if that is not appropri-ate, in some other manner likely to bring his identity to the notice of a personacquiring a copy,

(b) in the case of identification on a building, to be identified by appropriate meansvisible to persons entering or approaching the building, and

(c) in any other case, to be identified in a manner likely to bring his identity to theattention of a person seeing or hearing the performance, exhibition, showing,broadcast or cable programme in question;

and the identification must in each case be clear and reasonably prominent.(8) If the author or director in asserting his right to be identified specifies a pseudonym,

initials or some other particular form of identification, that form shall be used; otherwise anyreasonable form of identification may be used.

(9) This section has effect subject to section 79 (exceptions to right).

78 Requirement that right be asserted(1) A person does not infringe the right conferred by section 77 (right to be identified as

author or director) by doing any of the acts mentioned in that section unless the right hasbeen asserted in accordance with the following provisions so as to bind him in relation to thatact.

42 Copyright Designs and Patents Act 1988

(2) The right may be asserted generally, or in relation to any specified act or description ofacts—

(a) on an assignment of copyright in the work, by including in the instrument effect-ing the assignment a statement that the author or director asserts in relation tothat work his right to be identified, or

(b) by instrument in writing signed by the author or director.(3) The right may also be asserted in relation to the public exhibition of an artistic

work—(a) by securing that when the author or other first owner of copyright parts with

possession of the original, or of a copy made by him or under his directionor control, the author is identified on the original or copy, or on a frame, mount orother thing to which it is attached, or

(b) by including in a licence by which the author or other first owner of copyrightauthorises the making of copies of the work a statement signed by or on behalf ofthe person granting the licence that the author asserts his right to be identified inthe event of the public exhibition of a copy made in pursuance of the licence.

(4) The persons bound by an assertion of the right under subsection (2) or (3) are—(a) in the case of an assertion under subsection (2)(a), the assignee and anyone

claiming through him, whether or not he has notice of the assertion;(b) in the case of an assertion under subsection (2)(b), anyone to whose notice the

assertion is brought;(c) in the case of an assertion under subsection (3)(a), anyone into whose hands that

original or copy comes, whether or not the identification is still present or visible;(d) in the case of an assertion under subsection (3)(b), the licensee and anyone into

whose hands a copy made in pursuance of the licence comes, whether or not hehas notice of the assertion.

(5) In an action for infringement of the right the court shall, in considering remedies,take into account any delay in asserting the right.

79 Exceptions to right(1) The right conferred by section 77 (right to be identified as author or director) is subject

to the following exceptions.(2) The right does not apply in relation to the following descriptions of work—

(a) a computer program;(b) the design of a typeface;(c) any computer-generated work.

(3) The right does not apply to anything done by or with the authority of the copyrightowner where copyright in the work originally vested—

(a) in the author’s employer by virtue of section 11(2) (works produced in course ofemployment), or

(b) in the director’s employer by virtue of section 9(2)(a) (person to be treated asauthor of film).

(4) The right is not infringed by an act which by virtue of any of the following provisionswould not infringe copyright in the work—

(a) section 30 (fair dealing for certain purposes), so far as it relates to the reporting ofcurrent events by means of a sound recording, film, broadcast or cableprogramme;

(b) section 31 (incidental inclusion of work in an artistic work, sound recording, film,broadcast or cable programme);

(c) section 32(3) (examination questions);(d) section 45 (parliamentary and judicial proceedings);(e) section 46(1) or (2) (Royal Commissions and statutory inquiries);

Copyright Designs and Patents Act 1988 43

(f) section 51 (use of design documents and models);(g) section 52 (effect of exploitation of design derived from artistic work);(h) [section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c.)]

(5) The right does not apply in relation to any work made for the purpose of reportingcurrent events.

(6) The right does not apply in relation to the publication in—(a) a newspaper, magazine or similar periodical, or(b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication ormade available with the consent of the author for the purposes of such publication.

(7) The right does not apply in relation to—(a) a work in which Crown copyright or Parliamentary copyright subsists, or(b) a work in which copyright originally vested in an international organisation by

virtue of section 168,unless the author or director has previously been identified as such in or on

published copies of the work.

Right to object to derogatory treatment of work

80 Right to object to derogatory treatment of work(1) The author of a copyright literary, dramatic, musical or artistic work, and the director

of a copyright film, has the right in the circumstances mentioned in this section not to havehis work subjected to derogatory treatment.

(2) For the purposes of this section—(a) ‘treatment’ of a work means any addition to, deletion from or alteration to or

adaptation of the work, other than—(i) a translation of a literary or dramatic work, or(ii) an arrangement or transcription of a musical work involving no more than a

change of key or register; and(b) the treatment of a work is derogatory if it amounts to distortion or mutilation of

the work or is otherwise prejudicial to the honour or reputation of the author ordirector;

and in the following provisions of this section references to a derogatory treatment of a workshall be construed accordingly.

(3) In the case of a literary, dramatic or musical work the right is infringed by a personwho—

(a) publishes commercially, performs in public, broadcasts or includes in a cableprogramme service a derogatory treatment of the work; or

(b) issues to the public copies of a film or sound recording of, or including, aderogatory treatment of the work.

(4) In the case of an artistic work the right is infringed by a person who—(a) publishes commercially or exhibits in public a derogatory treatment of the

work, or broadcasts or includes in a cable programme service a visual image of aderogatory treatment of the work,

(b) shows in public a film including a visual image of a derogatory treatment of thework or issues to the public copies of such a film, or

(c) in the case of—(i) a work of architecture in the form of a model for a building,(ii) a sculpture, or(iii) a work of artistic craftsmanship,

issues to the public copies of a graphic work representing, or of a photograph of, a derogatorytreatment of the work.

44 Copyright Designs and Patents Act 1988

(5) Subsection (4) does not apply to a work of architecture in the form of a building; butwhere the author of such a work is identified on the building and it is the subject of derogatorytreatment he has the right to require the identification to be removed.

(6) In the case of a film, the right is infringed by a person who—(a) shows in public, broadcasts or includes in a cable programme service a derogatory

treatment of the film; or(b) issues to the public copies of a derogatory treatment of the film . . .

(7) The right conferred by this section extends to the treatment of parts of a workresulting from a previous treatment by a person other than the author or director, if those partare attributed to, or are likely to be regarded as the work of, the author or director.

(8) This section has effect subject to sections 81 and 82 (exceptions to and qualificationsof right).

81 Exceptions to right(1) The right conferred by section 80 (right to object to derogatory treatment of work) is

subject to the following exceptions.(2) The right does not apply to a computer program or to any computer-generated

work.(3) The right does not apply in relation to any work made for the purpose of reporting

current events.(4) The right does not apply in relation to the publication in—

(a) a newspaper, magazine or similar periodical, or(b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication ormade available with the consent of the author for the purposes of such publication.

Nor does the right apply in relation to any subsequent exploitation elsewhere of such awork without any modification of the published version.

(5) The right is not infringed by an act which by virtue of [section 57 or 66A (actspermitted on assumptions as to expiry of copyright, etc.)] would not infringe copyright.

(6) The right is not infringed by anything done for the purpose of—(a) avoiding the commission of an offence,(b) complying with a duty imposed by or under an enactment, or(c) in the case of the British Broadcasting Corporation, avoiding the inclusion in

a programme broadcast by them of anything which offends against good tasteor decency or which is likely to encourage or incite to crime or to lead to disorderor to be offensive to public feeling,

provided, where the author or director is identified at the time of the relevant act or haspreviously been identified in or on published copies of the work, that there is a sufficientdisclaimer.

82 Qualification of right in certain cases(1) This section applies to—

(a) works in which copyright originally vested in the author’s employer by virtue ofsection 11(2) (works produced in course of employment) or in the director’semployer by virtue of section 9(2)(a) (person to be treated as author of film),

(b) works in which Crown copyright or Parliamentary copyright subsists, and(c) works in which copyright originally vested in an international organisation by

virtue of section 168.(2) The right conferred by section 80 (right to object to derogatory treatment of work)

does not apply to anything done in relation to such a work by or with the authority of thecopyright owner unless the author or director—

(a) is identified at the time of the relevant act, or(b) has previously been identified in or on published copies of the work;

Copyright Designs and Patents Act 1988 45

and where in such a case the right does apply, it is not infringed if there is a sufficientdisclaimer.

83 Infringement of right by possessing or dealing with infringing article(1) The right conferred by section 80 (right to object to derogatory treatment of work) is

also infringed by a person who—(a) possesses in the course of a business, or(b) sells or lets for hire, or offers or exposes for sale or hire, or(c) in the course of a business exhibits in public or distributes, or(d) distributes otherwise than in the course of a business so as to affect prejudicially

the honour or reputation of the author or director,an article which is, and which he knows or has reason to believe is, an infringing article.

(2) An ‘infringing article’ means a work or a copy of a work which—(a) has been subjected to derogatory treatment within the meaning of section 80,

and(b) has been or is likely to be the subject of any of the acts mentioned in that section

in circumstances infringing that right.

False attribution of work

84 False attribution of work(1) A person has the right in the circumstances mentioned in this section—

(a) not to have a literary, dramatic, musical or artistic work falsely attributed to him asauthor, and

(b) not to have a film falsely attributed to him as director;and in this section an ‘attribution’, in relation to such a work, means a statement (express orimplied) as to who is the author or director.

(2) The right is infringed by a person who—(a) issues to the public copies of a work of any of those descriptions in or on which

there is a false attribution, or(b) exhibits in public an artistic work, or a copy of an artistic work, in or on

which there is a false attribution.(3) The right is also infringed by a person who—

(a) in the case of a literary, dramatic or musical work, performs the work in public,broadcasts it or includes it in a cable programme service as being the work of aperson, or

(b) in the case of a film, shows it in public, broadcasts it or includes it in a cableprogramme service as being directed by a person,

knowing or having reason to believe that the attribution is false.(4) The right is also infringed by the issue to the public or public display of material

containing a false attribution in connection with any of the acts mentioned in subsection (2)or (3).

(5) The right is also infringed by a person who in the course of a business—(a) possesses or deals with a copy of a work of any of the descriptions mentioned in

subsection (1) in or on which there is a false attribution, or(b) in the case of an artistic work, possesses or deals with the work itself when there is

a false attribution in or on it,knowing or having reason to believe that there is such an attribution and that it is false.

(6) In the case of an artistic work the right is also infringed by a person who in the courseof a business—

(a) deals with a work which has been altered after the author parted with possessionof it as being the unaltered work of the author, or

46 Copyright Designs and Patents Act 1988

(b) deals with a copy of such a work as being a copy of the unaltered work of theauthor,

knowing or having reason to believe that that is not the case.(7) References in this section to dealing are to selling or letting for hire, offering or

exposing for sale or hire, exhibiting in public, or distributing.(8) This section applies where, contrary to the fact—

(a) a literary, dramatic or musical work is falsely represented as being an adaptation ofthe work of a person, or

(b) a copy of an artistic work is falsely represented as being a copy made by the authorof the artistic work,

as it applies where the work is falsely attributed to a person as author.

Right to privacy of certain photographs and films

85 Right to privacy of certain photographs and films(1) A person who for private and domestic purposes commissions the taking of a photo-

graph or the making of a film has, where copyright subsists in the resulting work, the right notto have—

(a) copies of the work issued to the public,(b) the work exhibited or shown in public, or(c) the work broadcast or included in a cable programme service;

and, except as mentioned in subsection (2), a person who does or authorises the doing of anyof those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisionswould not infringe copyright in the work—

(a) section 31 (incidental inclusion of work in an artistic work, film, broadcast orcable programme);

(b) section 45 (parliamentary and judicial proceedings);(c) section 46 (Royal Commissions and statutory inquiries);(d) section 50 (acts done under statutory authority);(e) [section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c.)]

Supplementary

86 Duration of rights(1) The rights conferred by section 77 (right to be identified as author or director), section

80 (right to object to derogatory treatment of work) and section 85 (right to privacy of certainphotographs and films) continue to subsist so long as copyright subsists in the work.

(2) The right conferred by section 84 (false attribution) continues to subsist until 20years after a person’s death.

87 Consent and waiver of rights(1) It is not an infringement of any of the rights conferred by this Chapter to do any act to

which the person entitled to the right has consented.(2) Any of those rights may be waived by instrument in writing signed by the person

giving up the right.(3) A waiver—

(a) may relate to a specific work, to works of a specified description or to worksgenerally, and may relate to existing or future works, and

(b) may be conditional or unconditional and may be expressed to be subject torevocation;

and if made in favour of the owner or prospective owner of the copyright in the work or worksto which it relates, it shall be presumed to extend to his licensees and successors in title unlessa contrary intention is expressed.

Copyright Designs and Patents Act 1988 47

(4) Nothing in this Chapter shall be construed as excluding the operation of the generallaw of contract or estoppel in relation to an informal waiver or other transaction in relation toany of the rights mentioned in subsection (1).

88 Application of provisions to joint works(1) The right conferred by section 77 (right to be identified as author or director) is, in the

case of a work of joint authorship, a right of each joint author to be identified as a joint authorand must be asserted in accordance with section 78 by each joint author in relation to himself.

(2) The right conferred by section 80 (right to object to derogatory treatment of work) is,in the case of a work of joint authorship, a right of each joint author and his right is satisfied ifhe consents to the treatment in question.

(3) A waiver under section 87 of those rights by one joint author does not affect the rightsof the other joint authors.

(4) The right conferred by section 84 (false attribution) is infringed, in the circumstancesmentioned in that section—

(a) by any false statement as to the authorship of a work of joint authorship, and(b) by the false attribution of joint authorship in relation to a work of sole authorship;

and such a false attribution infringes the right of every person to whom authorship of anydescription is, whether rightly or wrongly, attributed.

(5) The above provisions also apply (with any necessary adaptations) in relation to afilm which was, or is alleged to have been, jointly directed, as they apply to a work which is, oris alleged to be, a work of joint authorship.

A film is ‘jointly directed’ if it is made by the collaboration of two or more directors and thecontribution of each director is not distinct from that of the other director or directors.

(6) The right conferred by section 85 (right to privacy of certain photographs and films)is, in the case of a work made in pursuance of a joint commission, a right of each person whocommissioned the making of the work, so that—

(a) the right of each is satisfied if he consents to the act in question, and(b) a waiver under section 87 by one of them does not affect the rights of the others.

89 Application of provisions to parts of works(1) The rights conferred by section 77 (right to be identified as author or director) and

section 85 (right to privacy of certain photographs and films) apply in relation to the whole orany substantial part of a work.

(2) The rights conferred by section 80 (right to object to derogatory treatment of work)and section 84 (false attribution) apply in relation to the whole or any part of a work.

CHAPTER V DEALINGS WITH RIGHTS IN COPYRIGHT WORKS

Copyright

90 Assignment and licences(1) Copyright is transmissible by assignment, by testamentary disposition or by

operation of law, as personal or moveable property.(2) An assignment or other transmission of copyright may be partial, that is, limited so as

to apply—(a) to one or more, but not all, of the things the copyright owner has the exclusive

right to do;(b) to part, but not the whole, of the period for which the copyright is to subsist.

(3) An assignment of copyright is not effective unless it is in writing signed by or onbehalf of the assignor.

(4) A licence granted by a copyright owner is binding on every successor in title to hisinterest in the copyright, except a purchaser in good faith for valuable consideration andwithout notice (actual or constructive) of the licence or a person deriving title from such a

48 Copyright Designs and Patents Act 1988

purchaser; and references in this Part to doing anything with, or without, the licence of thecopyright owner shall be construed accordingly.

91 Prospective ownership of copyright(1) Where by an agreement made in relation to future copyright, and signed by or on

behalf of the prospective owner of the copyright, the prospective owner purports to assign thefuture copyright (wholly or partially) to another person, then if, on the copyright coming intoexistence, the assignee or another person claiming under him would be entitled as against allother persons to require the copyright to be vested in him, the copyright shall vest in theassignee or his successor in title by virtue of this subsection.

(2) In this Part—‘future copyright’ means copyright which will or may come into existence in respect of a

future work or class of works or on the occurrence of a future event; and‘prospective owner’ shall be construed accordingly, and includes a person who is

prospectively entitled to copyright by virtue of such an agreement as is mentioned insubsection (1).

(3) A licence granted by a prospective owner of copyright is binding on every successor intitle to his interest (or prospective interest) in the right, except a purchaser in good faith forvaluable consideration and without notice (actual or constructive) of the licence or a personderiving title from such a purchaser; and references in this Part to doing anything with, orwithout, the licence of the copyright owner shall be construed accordingly.

92 Exclusive licences(1) In this Part an ‘exclusive licence’ means a licence in writing signed by or on behalf of

the copyright owner authorising the licensee to the exclusion of all other persons, includingthe person granting the licence, to exercise a right which would otherwise be exercisableexclusively by the copyright owner.

(2) The licensee under an exclusive licence has the same rights against a successor in titlewho is bound by the licence as he has against the person granting the licence.

Moral rights

94 Moral rights not assignableThe rights conferred by Chapter IV (moral rights) are not assignable.

95 Transmission of moral rights on death(1) On the death of a person entitled to the right conferred by section 77 (right to

identification of author or director), section 80 (right to object to derogatory treatment ofwork) or section 85 (right to privacy of certain photographs and films)—

(a) the right passes to such person as he may be testamentary disposition specificallydirect,

(b) if there is no such direction but the copyright in the work in question forms part ofhis estate, the right passes to the person to whom the copyright passes, and

(c) if or to the extent that the right does not pass under paragraph (a) or (b) it isexercisable by his personal representatives.

(2) Where copyright forming part of a person’s estate passes in part to one person and inpart to another, as for example where a bequest is limited so as to apply—

(a) to one or more, but not all, of the things the copyright owner has the exclusiveright to do or authorise, or

(b) to part, but not the whole, of the period for which the copyright is to subsist,any right which passes with the copyright by virtue of subsection (1) is correspondinglydivided.

(3) Where by virtue of subsection (1)(a) or (b) a right becomes exercisable by more thanone person—

Copyright Designs and Patents Act 1988 49

(a) it may, in the case of the right conferred by section 77 (right to identification ofauthor or director), be asserted by any of them;

(b) it is, in the case of the right conferred by section 80 (right to object to derogatorytreatment of work) or section 85 (right to privacy of certain photographs andfilms), a right exercisable by each of them and is satisfied in relation to any of themif he consents to the treatment or act in question; and

(c) any waiver of the right in accordance with section 87 by one of them does notaffect the rights of the others.

(4) A consent or waiver previously given or made binds any person to whom a rightpasses by virtue of subsection (1).

(5) Any infringement after a person’s death of the right conferred by section 84 (falseattribution) is actionable by his personal representatives.

(6) Any damages recovered by personal representatives by virtue of this section in respectof an infringement after a person’s death shall devolve as part of his estate as if the right ofaction had subsisted and been vested in him immediately before his death.

CHAPTER VI REMEDIES FOR INFRINGEMENT

Rights and remedies of copyright owner

96 Infringement actionable by copyright owner(1) An infringement of copyright is actionable by the copyright owner.(2) In an action for infringement of copyright all such relief by way of damages,

injunctions, accounts or otherwise is available to the plaintiff as is available in respect of theinfringement of any other property right.

(3) This section has effect subject to the following provisions of this Chapter.

97 Provisions as to damages in infringement action(1) Where in an action for infringement of copyright it is shown that at the time of the

infringement the defendant did not know, and had no reason to believe, that copyrightsubsisted in the work to which the action relates, the plaintiff is not entitled to damagesagainst him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all thecircumstances, and in particular to—

(a) the flagrancy of the infringement, and(b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

Rights and remedies of exclusive licensee

101 Rights and remedies of exclusive licensee(1) An exclusive licensee has, except against the copyright owner, the same rights and

remedies in respect of matters occurring after the grant of the licence as if the licence had beenan assignment.

(2) His rights and remedies are concurrent with those of the copyright owner; andreferences in the relevant provisions of this Part to the copyright owner shall be construedaccordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant mayavail himself of any defence which would have been available to him if the action had beenbrought by the copyright owner.

102 Exercise of concurrent rights(1) Where an action for infringement of copyright brought by the copyright owner or an

exclusive licensee relates (wholly or partly) to an infringement in respect of which they have

50 Copyright Designs and Patents Act 1988

concurrent rights of action, the copyright owner or, as the case may be, the exclusive licenseemay not, without the leave of the court, proceed with the action unless the other is eitherjoined as a plaintiff or added as a defendant.

(2) A copyright owner or exclusive licensee who is added as a defendant in pursuance ofsubsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on anapplication by a copyright owner or exclusive licensee alone.

(4) Where an action for infringement of copyright is brought which relates (wholly orpartly) to an infringement in respect of which the copyright owner and an exclusive licenseehave or had concurrent rights of action—

(a) the court shall in assessing damages take into account—(i) the terms of the licence, and(ii) any pecuniary remedy already awarded or available to either of them in

respect of the infringement;(b) no account of profits shall be directed if an award of damages has been made, or an

account of profits has been directed, in favour of the other of them in respect ofthe infringement; and

(c) the court shall if an account of profits is directed apportion the profits betweenthem as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the copyright owner and the exclusive licensee areboth parties to the action.

(5) The copyright owner shall notify any exclusive licensee having concurrent rightsbefore applying for an order under section 99 (order for delivery up) or exercising the rightconferred by section 100 (right of seizure); and the court may on the application of thelicensee make such order under section 99 or, as the case may be, prohibiting or permitting theexercise by the copyright owner of the right conferred by section 100, as it thinks fit havingregard to the terms of the licence.

Remedies for infringement of moral rights

103 Remedies for infringement of moral rights(1) An infringement of a right conferred by Chapter IV (moral rights) is actionable as a

breach of statutory duty owed to the person entitled to the right.(2) In proceedings for infringement of the right conferred by section 80 (right to object

to derogatory treatment of work) the court may, if it thinks it is an adequate remedy inthe circumstances, grant an injunction on terms prohibiting the doing of any act unless adisclaimer is made, in such terms and in such manner as may be approved by the court,dissociating the author or director from the treatment of the work.

Offences

107 Criminal liability for making or dealing with infringing articles, etc.(1) A person commits an offence who, without the licence of the copyright owner—

(a) makes for sale or hire, or(b) imports into the United Kingdom otherwise than for his private and domestic use,

or(c) possesses in the course of a business with a view to committing any act infringing

the copyright, or(d) in the course of a business—

(i) sells or lets for hire, or(ii) offers or exposes for sale or hire, or(iii) exhibits in public, or(iv) distributes, or

Copyright Designs and Patents Act 1988 51

(e) distributes otherwise than in the course of a business to such an extent as to affectprejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of acopyright work.

(2) A person commits an offence who—(a) makes an article specifically designed or adapted for making copies of a particular

copyright work, or(b) has such an article in his possession,

knowing or having reason to believe that it is to be used to make infringing copies for sale orhire or for use in the course of a business.

(3) Where copyright is infringed (otherwise than by reception of a broadcast or cableprogramme)—

(a) by the public performance of a literary, dramatic or musical work, or(b) by the playing or showing in public of a sound recording or film,

any person who caused the work to be so performed, played or shown is guilty of an offence ifhe knew or had reason to believe that copyright would be infringed.

(4) A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable—(a) on summary conviction to imprisonment for a term not exceeding six months or

a fine not exceeding the statutory maximum, or both;(b) on conviction on indictment to a fine or imprisonment for a term not exceeding

two years, or both.(5) A person guilty of any other offence under this section is liable on summary con-

viction to imprisonment for a term not exceeding six months or a fine not exceeding level 5on the standard scale, or both.

(6) Sections 104 to 106 (presumptions as to various matters connected with copyright) donot apply to proceedings for an offence under this section; but without prejudice to theirapplication in proceedings for an order under section 108 below.

110 Offence by body corporate: liability of officers(1) Where an offence under section 107 committed by a body corporate is proved to have

been committed with the consent or connivance of a director, manager, secretary or othersimilar officer of the body, or a person purporting to act in any such capacity, he as well as thebody corporate is guilty of the offence and liable to be proceeded against and punishedaccordingly.

(2) In relation to a body corporate whose affairs are managed by its members ‘director’means a member of the body corporate.

CHAPTER IX QUALIFICATION FOR AND EXTENT OF COPYRIGHT PROTECTION

Qualification for copyright protection

153 Qualification for copyright protection(1) Copyright does not subsist in a work unless the qualification requirements of this

Chapter are satisfied as regards—(a) the author (see section 154), or(b) the country in which the work was first published (see section 155), or(c) in the case of a broadcast or cable programme, the country from which the

broadcast was made or the cable programme was sent (see section 156).(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentary

copyright (see sections 163 to [166B*]) or to copyright subsisting by virtue of section 168(copyright of certain international organisations).

* This amendment in force 2 December 1999; see SI 1999/3209.

52 Copyright Designs and Patents Act 1988

(3) If the qualification requirements of this Chapter, or section 163, 165 or 168, are oncesatisfied in respect of a work, copyright does not cease to subsist by reason of any subsequentevent.

154 Qualification by reference to author(1) A work qualifies for copyright protection if the author was at the material time a

qualifying person, that is—(a) a British citizen, a British Dependent Territories citizen*, a British National

(Overseas), a British Overseas citizen, a British subject or a British protected personwithin the meaning of the British Nationality Act 1981, or

(b) an individual domiciled or resident in the United Kingdom or another country towhich the relevant provisions of this Part extend, or

(c) a body incorporated under the law of a part of the United Kingdom or of anothercountry to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of thisPart to countries to which it does not extend), a work also qualifies for copyright protection ifat the material time the author was a citizen or subject of, an individual domiciled or residentin, or a body incorporated under the law of, a country to which the Order relates.

(3) A work of joint authorship qualifies for copyright protection if at the materialtime any of the authors satisfies the requirements of subsection (1) or (2); but where a workqualifies for copyright protection only under this section, only those authors who satisfythose requirements shall be taken into account for the purposes of—

section 11(1) and (2) (first ownership of copyright; entitlement of author or author’semployer),

[section 12 (duration of copyright), and section 9(4) (meaning of ‘unknown authorship’)so far as it applies for the purposes of section 12, and]

section 57 (anonymous or pseudonymous works: acts permitted on assumptions as toexpiry of copyright or death of author).

(4) The material time in relation to a literary, dramatic, musical or artistic work is—(a) in the case of an unpublished work, when the work was made or, if the making of

the work extended over a period, a substantial part of that period;(b) in the case of a published work, when the work was first published or, if the author

had died before that time, immediately before his death.(5) The material time in relation to other descriptions of work is as follows—

(a) in the case of a sound recording or film, when it was made;(b) in the case of a broadcast, when the broadcast was made;(c) in the case of a cable programme, when the programme was included in a cable

programme service;(d) in the case of the typographical arrangement of a published edition, when the

edition was first published.

155 Qualification by reference to country of first publication(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the

typographical arrangement of a published edition, qualifies for copyright protection if it isfirst published—

(a) in the United Kingdom, or(b) in another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of thisPart to countries to which it does not extend), such a work also qualifies for copyright protec-tion if it is first published in a country to which the Order relates.

(3) For the purposes of this section, publication in one country shall not be regarded as

* See British Overseas Territories Act 2002 c. 8 s. 2.

Copyright Designs and Patents Act 1988 53

other than the first publication by reason of simultaneous publication elsewhere; and for thispurpose publication elsewhere within the previous 30 days shall be treated as simultaneous.

156 Qualification by reference to place of transmission(1) A broadcast qualifies for copyright protection if it is made from, and a cable

programme qualifies for copyright protection if it is sent from, a place in—(a) the United Kingdom, or(b) another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of thisPart to countries to which it does not extend), a broadcast or cable programme also qualifiesfor copyright protection if it is made from or, as the case may be, sent from a place in a countryto which the Order relates.

Interpretation

175 Meaning of publication and commercial publication(1) In this Part ‘publication’, in relation to a work—

(a) means the issue of copies to the public, and(b) includes, in the case of a literary, dramatic, musical or artistic work, making it

available to the public by means of an electronic retrieval system;and related expressions shall be construed accordingly.

(2) In this Part ‘commercial publication’, in relation to a literary, dramatic, musical orartistic work means—

(a) issuing copies of the work to the public at a time when copies made in advance ofthe receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrievalsystem;

and related expressions shall be construed accordingly.(3) In the case of a work of architecture in the form of a building, or an artistic work

incorporated in a building, construction of the building shall be treated as equivalent topublication of the work.

(4) The following do not constitute publication for the purposes of this Part andreferences to commercial publication shall be construed accordingly—

(a) in the case of a literary, dramatic or musical work—(i) the performance of the work, or(ii) the broadcasting of the work or its inclusion in a cable programme service

(otherwise than for the purposes of an electronic retrieval system);(b) in the case of an artistic work—

(i) the exhibition of the work,(ii) the issue to the public of copies of a graphic work representing, or of photo-

graphs of, a work of architecture in the form of a building or a model for abuilding, a sculpture or a work of artistic craftsmanship,

(iii) the issue to the public of copies of a film including the work, or(iv) the broadcasting of the work or its inclusion in a cable programme service

(otherwise than for the purposes of an electronic retrieval system);(c) in the case of a sound recording or film—

(i) the work being played or shown in public, or(ii) the broadcasting of the work or its inclusion in a cable programme service.

(5) References in this Part to publication or commercial publication do not includepublication which is merely colourable and not intended to satisfy the reasonablerequirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorisedact.

54 Copyright Designs and Patents Act 1988

178 Minor definitionsIn this Part—

‘article’, in the context of an article in a periodical, includes an item of any description;‘business’ includes a trade or profession;‘collective work’ means—

(a) a work of joint authorship, or(b) a work in which there are distinct contributions by different authors or in which

works or parts of works of different authors are incorporated;‘computer-generated’, in relation to a work, means that the work is generated by

computer in circumstances such that there is no human author of the work;‘country’ includes any territory;‘the Crown’ includes the Crown in right of [the Scottish Administration or of*] Her

Majesty’s Government in Northern Ireland or in any country outside the United Kingdom towhich this Part extends;

‘electronic’ means actuated by electric, magnetic, electro-magnetic, electro-chemical orelectro-mechanical energy, and ‘in electronic form’ means in a form usable only by electronicmeans;

‘employed’, ‘employee’, ‘employer’ and ‘employment’ refer to employment under acontract of service or of apprenticeship;

‘facsimile copy’ includes a copy which is reduced or enlarged in scale;‘international organisation’ means an organisation the members of which include one or

more states;‘judicial proceedings’ includes proceedings before any court, tribunal or person having

authority to decide any matter affecting a person’s legal rights or liabilities;‘parliamentary proceedings’ includes proceedings of the Northern Ireland Assembly [of

the Scottish Parliament*] or of the European Parliament;[‘producer’, in relation to a sound recording or a film, means the person by whom the

arrangements necessary for the making of the sound recording or film are undertaken;]‘rental right’ means the right of a copyright owner to authorise or prohibit the rental of

copies of the work (see section 18A);]‘reprographic copy’ and ‘reprographic copying’ refer to copying by means of a repro-

graphic process;‘reprographic process’ means a process—

(a) for making facsimile copies, or(b) involving the use of an appliance for making multiple copies,

and includes, in relation to a work held in electronic form, any copying by electronic means,but does not include the making of a film or sound recording;

‘sufficient acknowledgement’ means an acknowledgement identifying the work inquestion by its title or other description, and identifying the author unless—

(a) in the case of a published work, it is published anonymously;(b) in the case of an unpublished work, it is not possible for a person to ascertain the

identity of the author by reasonable inquiry;‘sufficient disclaimer’, in relation to an act capable of infringing the right conferred by

section 80 (right to object to derogatory treatment of work), means a clear and reasonablyprominent indication—

(a) given at the time of the act, and(b) if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has notconsented;

* In force 6 May 1999: see SI 1998/3178.

Copyright Designs and Patents Act 1988 55

‘telecommunications system’ means a system for conveying visual images, sounds orother information by electronic means;

‘typeface’ includes an ornamental motif used in printing;‘unauthorised’, as regards anything done in relation to a work, means done otherwise

than—(a) by or with the licence of the copyright owner, or(b) if copyright does not subsist in the work, by or with the licence of the author or, in

a case where section 11(2) would have applied, the author’s employer or, in eithercase, persons lawfully claiming under him, or

(c) in pursuance of section 48 (copying, etc. of certain material by the Crown);‘wireless telegraphy’ means the sending of electro-magnetic energy over paths not

provided by a material substance constructed or arranged for that purpose;‘writing’ includes any form of notation or code, whether by hand or otherwise and

regardless of the method by which, or medium in or on which, it is recorded, and ‘written’shall be construed accordingly.

PART VII MISCELLANEOUS AND GENERAL

Devices designed to circumvent copy-protection

296 Devices designed to circumvent copy-protection(1) This section applies where copies of a copyright work are issued to the public, by or

with the licence of the copyright owner, in an electronic form which is copy-protected.(2) The person issuing the copies to the public has the same rights against a person who,

knowing or having reason to believe that it will be used to make infringing copies—(a) makes, imports, sells or lets for hire, offers or exposes for sale or hire, or advertises

for sale or hire, any device or means specifically designed or adapted to circumventthe form of copy-protection employed, or

(b) publishes information intended to enable or assist persons to circumvent thatform of copy-protection,

as a copyright owner has in respect of an infringement of copyright.[(2A) Where the copies being issued to the public as mentioned in subsection (1) are

copies of a computer program, subsection (2) applies as if for the words ‘or advertises for saleor hire’ there were substituted ‘advertises for sale or hire or possesses in the course of abusiness’.]

(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure ofcertain articles) in relation to any such device or means which a person has in his possession,custody or control with the intention that it should be used to make infringing copies ofcopyright works, as a copyright owner has in relation to an infringing copy.

(4) References in this section to copy-protection include any device or means intended toprevent or restrict copying of a work or to impair the quality of copies made.

(5) Expressions used in this section which are defined for the purposes of Part I of this Act(copyright) have the same meaning as in that Part.

(6) The following provisions apply in relation to proceedings under this section as inrelation to proceedings under Part I (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating tocopyright), and

(b) section 72 of the Supreme Court Act 1981, section 15 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature(Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination incertain proceedings relating to intellectual property);

56 Copyright Designs and Patents Act 1988

and section 114 of this Act applies, with the necessary modifications, in relation to thedisposal of anything delivered up or seized by virtue of subsection (3) above.

[Computer programs

296A Avoidance of certain terms(1) Where a person has the use of a computer program under an agreement, any term or

condition in the agreement shall be void in so far as it purports to prohibit or restrict—(a) the making of any back up copy of the program which it is necessary for him to

have for the purposes of the agreed use;(b) where the conditions in section 50B(2) are met, the decompiling of the program;

or(c) the use of any device or means to observe, study or test the functioning of

the program in order to understand the ideas and principles which underlie anyelement of the program.

(2) In this section, decompile, in relation to a computer program, has the same meaningas in section 50B.]

Databases

296B Avoidance of certain terms relating to databasesWhere under an agreement a person has a right to use a database or part of a database, anyterm or condition in the agreement shall be void in so far as it purports to prohibit or restrictthe performance of any act which would but for section 50D infringe the copyright in thedatabase.*]

Fraudulent reception of transmissions

297 Offence of fraudulently receiving programmes(1) A person who dishonestly receives a programme included in a broadcasting or cable

programme service provided from a place in the United Kingdom with intent to avoid pay-ment of any charge applicable to the reception of the programme commits an offence and isliable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) Where an offence under this section committed by a body corporate is proved to havebeen committed with the consent or connivance of a director, manager, secretary or othersimilar officer of the body, or a person purporting to act in any such capacity, he as well as thebody corporate is guilty of the offence and liable to be proceeded against and punishedaccordingly.In relation to a body corporate whose affairs are managed by its members ‘director’ means amember of the body corporate.

297A Unauthorised decoders(1) A person commits an offence if he—

(a) makes, imports, distributes, sells or lets for hire or offers or exposes for sale or hireany unauthorised decoder;

(b) has in his possession for commercial purposes any unauthorised decoder;(c) instals, maintains or replaces for commercial purposes any unauthorised decoder;

or(d) advertises any unauthorised decoder for sale or hire or otherwise promotes any

unauthorised decoder by means of commercial communications.(2) A person guilty of an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

* In force 1 January 1998: see SI 1997/3032 r. 1.

Copyright Designs and Patents Act 1988 57

(b) on conviction on indictment, to imprisonment for a term not exceeding twoyears, or to a fine, or to both.

(3) It is a defence to any prosecution for an offence under this section for the defendant toprove that he did not know, and had no reasonable ground for believing, that the decoder wasan unauthorised decoder.

(4) In this section—‘apparatus’ includes any device, component or electronic data (including software);‘conditional access technology’ means any technical measure or arrangement whereby

access to encrypted transmissions in an intelligible form is made conditional on priorindividual authorisation;

‘decoder’ means any apparatus which is designed or adapted to enable (whether on itsown or with any other apparatus) an encrypted transmission to be decoded;

‘encrypted’ includes subjected to scrambling or the operation of cryptographicenvelopes, electronic locks, passwords or any other analogous application;

‘transmission’ means—(a) any programme included in a broadcasting or cable programme service

which is provided from a place in the United Kingdom or any other memberState; or

(b) an information society service (within the meaning of Directive 98/34/EC of theEuropean Parliament and of the Council of 22nd June 1998(a), as amended byDirective 98/48/EC of the European Parliament and of the Council of 20th July1998(b)) which is provided from a place in the United Kingdom or any othermember State; and

‘unauthorised’, in relation to a decoder, means that the decoder is designed or adaptedto enable an encrypted transmission, or any service of which it forms part, to be accessedin an intelligible form without payment of the fee (however imposed) which the personmaking the transmission, or on whose behalf it is made, charges for accessing the trans-mission or service (whether by the circumvention of any conditional access technologyrelated to the transmission or service or by any other means).*]

[298 Rights and remedies in respect of apparatus, etc. for unauthorised receptionof transmissions

(1) A person who—(a) makes charges for the reception of programmes included in a broadcasting or

cable programme service provided from a place in the United Kingdom or anyother member State,

(b) sends encrypted transmissions of any other description from a place in the UnitedKingdom or any other member State, or

(c) provides conditional access services from a place in the United Kingdom or anyother member State,

is entitled to the following rights and remedies.(2) He has the same rights and remedies against a person—

(a) who—(i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or

hire, or advertises for sale or hire,(ii) has in his possession for commercial purposes, or(iii) instals, maintains or replaces for commercial purposes, any apparatus

designed or adapted to enable or assist persons to access the programmes orother transmissions or circumvent conditional access technology related tothe programmes or other transmissions when they are not entitled to do so, or

* This version of s. 297A in force 28 May 2000: see SI 2000/1175.

58 Copyright Designs and Patents Act 1988

(b) who publishes or otherwise promotes by means of commercial communicationsany information which is calculated to enable or assist persons to access the pro-grammes or other transmissions or circumvent conditional access technologyrelated to the programmes or other transmissions when they are not entitled to doso,

as a copyright owner has in respect of an infringement of copyright.(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of

certain articles) in relation to any such apparatus as a copyright owner has in relation toan infringing copy.

(4) Section 72 of the Supreme Court Act 1981, section 15 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (NorthernIreland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedingsrelating to intellectual property) apply to proceedings under this section as to proceedingsunder Part I of this Act (copyright).

(5) In section 97(1) (innocent infringement of copyright) as it applies to proceedings forinfringement of the rights conferred by this section, the reference to the defendant notknowing or having reason to believe that copyright subsisted in the work shall be construed asa reference to his not knowing or having reason to believe that his acts infringed the rightsconferred by this section.

(6) Section 114 applies, with the necessary modifications, in relation to the disposal ofanything delivered up or seized by virtue of subsection (3) above.

(7) In this section ‘apparatus’, ‘conditional access technology’ and ‘encrypted’ havethe same meanings as in section 297A, ‘transmission’ includes transmissions as defined inthat section and ‘conditional access services’ means services comprising the provision ofconditional access technology.*]

299 Supplementary provisions as to fraudulent reception(1) Her Majesty may by Order in Council—

(a) provide that section 297 applies in relation to programmes included in servicesprovided from a country or territory outside the United Kingdom, and

(b) provide that section 298 applies in relation to such programmes and to encryptedtransmissions sent from such a country or territory.

(2) . . .(3) A statutory instrument containing an Order in Council under subsection (1) shall be

subject to annulment in pursuance of a resolution of either House of Parliament.(4) Where sections 297 [,297A] and 298 apply in relation to a broadcasting service or

cable programme service, they also apply to any service run for the person providing thatservice, or a person providing programmes for that service, which consists wholly or mainlyin the sending by means of a telecommunications system of sounds or visual images, orboth.

(5) In sections 297 and 298, and this section, ‘programme’, ‘broadcasting’ and ‘cableprogramme service’, and related expressions, have the same meaning as in Part I (copyright).

Computer Misuse Act 1990(1990, c. 18)

An Act to make provision for securing computer material against unauthorised access or modifica-

tion; and for connected purposes. [29th June 1990]

* In force 28 May 2000: see SI 2000/1175.

Computer Misuse Act 1990 59

Computer misuse offences

1 Unauthorised access to computer material(1) A person is guilty of an offence if—

(a) he causes a computer to perform any function with intent to secure access to anyprogram or data held in any computer;

(b) the access he intends to secure is unauthorised; and(c) he knows at the time when he causes the computer to perform the function that

that is the case.(2) The intent a person has to have to commit an offence under this section need not be

directed at—(a) any particular program or data;(b) a program or data of any particular kind; or(c) a program or data held in any particular computer.

(3) A person guilty of an offence under this section shall be liable on summary convictionto imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on thestandard scale or to both.

2 Unauthorised access with intent to commit or facilitate commission offurther offences

(1) A person is guilty of an offence under this section if he commits an offence undersection 1 above (‘the unauthorised access offence’) with intent—

(a) to commit an offence to which this section applies; or(b) to facilitate the commission of such an offence (whether by himself or by any

other person);and the offence he intends to commit or facilitate is referred to below in this section as thefurther offence.

(2) This section applies to offences—(a) for which the sentence is fixed by law; or(b) for which a person of twenty-one years* of age or over (not previously convicted)

may be sentenced to imprisonment for a term of five years (or, in England andWales, might be so sentenced but for the restrictions imposed by section 33 of theMagistrates’ Courts Act 1980).

(3) It is immaterial for the purposes of this section whether the further offence is tobe committed on the same occasion as the unauthorised access offence or on any futureoccasion.

(4) A person may be guilty of an offence under this section even though the facts are suchthat the commission of the further offence is impossible.

(5) A person guilty of an offence under this section shall be liable—(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) on conviction on indictment, to imprisonment for a term not exceeding five years

or to a fine or to both.

3 Unauthorised modification of computer material(1) A person is guilty of an offence if—

(a) he does any act which causes an unauthorised modification of the contents of anycomputer; and

(b) at the time when he does the act he has the requisite intent and the requisiteknowledge.

* An amendment to this age limit has been enacted but not yet brought into force: see Criminal Justiceand Court Services Act 2000 c. 43 s. 80 and sch. 7, para. 98.

60 Computer Misuse Act 1990

(2) For the purposes of subsection (1)(b) above the requisite intent is an intent to cause amodification of the contents of any computer and by so doing—

(a) to impair the operation of any computer;(b) to prevent or hinder access to any program or data held in any computer; or(c) to impair the operation of any such program or the reliability of any such data.

(3) The intent need not be directed at—(a) any particular computer;(b) any particular program or data or a program or data of any particular kind; or(c) any particular modification or a modification of any particular kind.

(4) For the purposes of subsection (1)(b) above the requisite knowledge is knowledge thatany modification he intends to cause is unauthorised.

(5) It is immaterial for the purposes of this section whether an unauthorised modificationor any intended effect of it of a kind mentioned in subsection (2) above is, or is intended to be,permanent or merely temporary.

(6) For the purposes of the Criminal Damage Act 1971 a modification of the contentsof a computer shall not be regarded as damaging any computer or computer storagemedium unless its effect on that computer or computer storage medium impairs its physicalcondition.

(7) A person guilty of an offence under this section shall be liable—(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) on conviction on indictment, to imprisonment for a term not exceeding five years

or to a fine or to both.

Jurisdiction

4 Territorial scope of offences under this Act(1) Except as provided below in this section, it is immaterial for the purposes of any

offence under section 1 or 3 above—(a) whether any act or other event proof of which is required for conviction of the

offence occurred in the home country concerned; or(b) whether the accused was in the home country concerned at the time of any such

act or event.(2) Subject to subsection (3) below, in the case of such an offence at least one significant

link with domestic jurisdiction must exist in the circumstances of the case for the offence to becommitted.

(3) There is no need for any such link to exist for the commission of an offence undersection 1 above to be established in proof of an allegation to that effect in proceedings for anoffence under section 2 above.

(4) Subject to section 8 below, where—(a) any such link does in fact exist in the case of an offence under section 1 above; and(b) commission of that offence is alleged in proceedings for an offence under section

2 above;section 2 above shall apply as if anything the accused intended to do or facilitate in any placeoutside the home country concerned which would be an offence to which section 2 applies ifit took place in the home country concerned were the offence in question.

(5) This section is without prejudice to any jurisdiction exercisable by a court in Scotlandapart from this section.

(6) References in this Act to the home country concerned are references—(a) in the application of this Act to England and Wales, to England and Wales;(b) in the application of this Act to Scotland, to Scotland; and(c) in the application of this Act to Northern Ireland, to Northern Ireland.

Computer Misuse Act 1990 61

5 Significant links with domestic jurisdiction(1) The following provisions of this section apply for the interpretation of section 4

above.(2) In relation to an offence under section 1, either of the following is a significant link

with domestic jurisdiction—(a) that the accused was in the home country concerned at the time when he did the

act which caused the computer to perform the function; or(b) that any computer containing any program or data to which the accused secured

or intended to secure unauthorised access by doing that act was in the homecountry concerned at that time.

(3) In relation to an offence under section 3, either of the following is a significant linkwith domestic jurisdiction—

(a) that the accused was in the home country concerned at the time when he did theact which caused the unauthorised modification; or

(b) that the unauthorised modification took place in the home countryconcerned.

6 Territorial scope of inchoate offences related to offences under this Act(1) On a charge of conspiracy to commit an offence under this Act the following

questions are immaterial to the accused’s guilt—(a) the question where any person became a party to the conspiracy; and(b) the question whether any act, omission or other event occurred in the home

country concerned.(2) On a charge of attempting to commit an offence under section 3 above the following

questions are immaterial to the accused’s guilt—(a) the question where the attempt was made; and(b) the question whether it had an effect in the home country concerned.

(3) On a charge of incitement to commit an offence under this Act the question where theincitement took place is immaterial to the accused’s guilt.

(4) This section does not extend to Scotland.

7 Territorial scope of inchoate offences related to offences under external lawcorresponding to offences under this Act

(1) . . .*(2) . . .(3) The following subsections shall be inserted after section 1(1) of the Criminal Attempts

Act 1981—‘(1A) Subject to section 8 of the Computer Misuse Act 1990 (relevance of external law), if

this subsection applies to an act, what the person doing it had in view shall be treated as anoffence to which this section applies.

(1B) Subsection (1A) above applies to an act if—(a) it is done in England and Wales; and(b) it would fall within subsection (1) above as more than merely preparatory to

the commission of an offence under section 3 of the Computer Misuse Act 1990but for the fact that the offence, if completed, would not be an offence triable inEngland and Wales.’

(4) Subject to section 8 below, if any act done by a person in England and Wales wouldamount to the offence of incitement to commit an offence under this Act but for the fact thatwhat he had in view would not be an offence triable in England and Wales—

* Sub-s. (1) and (2) abolished as from 4 September 1998: see Criminal Justice (Terrorism andConspiracy) Act 1998 s. 9 and sch. 2.

62 Computer Misuse Act 1990

(a) what he had in view shall be treated as an offence under this Act for the purposesof any charge of incitement brought in respect of that act; and

(b) any such charge shall accordingly be triable in England and Wales.

8 Relevance of external law*(1) A person is guilty of an offence triable by virtue of section 4(4) above only if what he

intended to do or facilitate would involve the commission of an offence under the law in forcewhere the whole or any part of it was intended to take place.

(2) . . .(3) A person is guilty of an offence triable by virtue of section 1(1A) of the Criminal

Attempts Act 1981 or by virtue of section 7(4) above only if what he had in view would involvethe commission of an offence under the law in force where the whole or any part of it wasintended to take place.

(4) Conduct punishable under the law in force in any place is an offence under that lawfor the purposes of this section, however it is described in that law.

(5) Subject to subsection (7) below, a condition specified in [subsection (1) and (3)] aboveshall be taken to be satisfied unless not later than rules of court may provide the defence serveon the prosecution a notice—

(a) stating that, on the facts as alleged with respect to the relevant conduct, thecondition is not in their opinion satisfied;

(b) showing their grounds for that opinion; and(c) requiring the prosecution to show that it is satisfied.

(6) In subsection (5) above ‘the relevant conduct’ means—(a) where the condition in subsection (1) above is in question, what the accused

intended to do or facilitate;(b) . . .(c) where the condition in subsection (3) above is in question, what the accused had

in view.(7) The court, if it thinks fit, may permit the defence to require the prosecution to

show that the condition is satisfied without the prior service of a notice under subsection (5)above.

(8) If by virtue of subsection (7) above a court of solemn jurisdiction in Scotland permitsthe defence to require the prosecution to show that the condition is satisfied, it shall becompetent for the prosecution for that purpose to examine any witness or to put in evidenceany production not included in the lists lodged by it.

(9) In the Crown Court the question whether the condition is satisfied shall be decidedby the judge alone.

(10) In the High Court of Justiciary and in the sheriff court the question whether thecondition is satisfied shall be decided by the judge or, as the case may be, the sheriff alone.

9 British citizenship immaterial*(1) In any proceedings brought in England and Wales in respect of any offence to which

this section applies it is immaterial to guilt whether or not the accused was a British citizen atthe time of any act, omission or other event proof of which is required for conviction of theoffence.

(2) This section applies to the following offences—(a) any offence under this Act;(b) . . .(c) any attempt to commit an offence under section 3 above; and(d) incitement to commit an offence under this Act.

* Amendment to this section in force 4 September 1998: see Criminal Justice (Terrorism and Conspir-acy) Act 1998 s. 9, sch. 1 para. 6 and sch. 2.

Computer Misuse Act 1990 63

Miscellaneous and general

10 Saving for certain law enforcement powersSection 1(1) above has effect without prejudice to the operation—

(a) in England and Wales of any enactment relating to powers of inspection, search orseizure; and

(b) in Scotland of any enactment or rule of law relating to powers of examination,search or seizure

[and nothing designed to indicate a withholding of consent to access to any program or datafrom persons as enforcement officers shall have effect to make access unauthorised for thepurposes of the said section 1(1).

In this section ‘enforcement officer’ means a constable or other person charged with theduty of investigating offences; and withholding consent from a person ‘as’ an enforcementofficer of any description includes the operation, by the person entitled to control access,of rules whereby enforcement officers of that description are, as such, disqualified frommembership of a class of persons who are authorised to have access].

11 Proceedings for offences under section 1(1) A magistrates’ court shall have jurisdiction to try an offence under section 1 above

if—(a) the accused was within its commission area at the time when he did the act which

caused the computer to perform the function; or(b) any computer containing any program or data to which the accused secured or

intended to secure unauthorised access by doing that act was in its commissionarea at that time.

(2) Subject to subsection (3) below, proceedings for an offence under section 1 above maybe brought within a period of six months from the date on which evidence sufficient in theopinion of the prosecutor to warrant the proceedings came to his knowledge.

(3) No such proceedings shall be brought by virtue of this section more than three yearsafter the commission of the offence.

(4) For the purposes of this section, a certificate signed by or on behalf of the prosecutorand stating the date on which evidence sufficient in his opinion to warrant the proceedingscame to his knowledge shall be conclusive evidence of that fact.

(5) A certificate stating that matter and purporting to be so signed shall be deemed to beso signed unless the contrary is proved.

(6) . . .*(7) This section does not extend to Scotland.

12 Conviction of an offence under section 1 in proceedings for an offence undersection 2 or 3.

(1) If on the trial on indictment of a person charged with—(a) an offence under section 2 above; or(b) an offence under section 3 above or any attempt to commit such an offence;

the jury find him not guilty of the offence charged, they may find him guilty of an offenceunder section 1 above if on the facts shown he could have been found guilty of that offencein proceedings for that offence brought before the expiry of any time limit under section 11above applicable to such proceedings.

(2) The Crown Court shall have the same powers and duties in relation to a personwho is by virtue of this section convicted before it of an offence under section 1 above as amagistrates’ court would have on convicting him of the offence.

* Amendment in effect from 27 September 1999: see Access to Justice Act 1999 c. 22 s. 108(3) and sch.15.

64 Computer Misuse Act 1990

(3) This section is without prejudice to section 6(3) of the Criminal Law Act 1967 (convic-tion of alternative indictable offence on trial on indictment).

(4) This section does not extend to Scotland.

13 Proceedings in Scotland(1) A sheriff shall have jurisdiction in respect of an offence under section 1 or 2 above

if—(a) the accused was in the sheriffdom at the time when he did the act which caused

the computer to perform the function; or(b) any computer containing any program or data to which the accused secured or

intended to secure unauthorised access by doing that act was in the sheriffdom atthat time.

(2) A sheriff shall have jurisdiction in respect of an offence under section 3 above if—(a) the accused was in the sheriffdom at the time when he did the act which caused

the unauthorised modification; or(b) the unauthorised modification took place in the sheriffdom.

(3) Subject to subsection (4) below, summary proceedings for an offence under section 1,2 or 3 above may be commenced within a period of six months from the date on whichevidence sufficient in the opinion of the procurator fiscal to warrant proceedings came to hisknowledge.

(4) No such proceedings shall be commenced by virtue of this section more than threeyears after the commission of the offence.

(5) For the purposes of this section, a certificate signed by or on behalf of the procuratorfiscal and stating the date on which evidence sufficient in his opinion to warrant theproceedings came to his knowledge shall be conclusive evidence of that fact.

(6) A certificate stating that matter and purporting to be so signed shall be deemed to beso signed unless the contrary is proved.

(7) Subsection (3) of [section 136 of the Criminal Procedure (Scotland) Act 1995] (date ofcommencement of proceedings) shall apply for the purposes of this section as it applies for thepurposes of that section.

(8) In proceedings in which a person is charged with an offence under section 2 or 3above and is found not guilty or is acquitted of that charge, he may be found guilty of anoffence under section 1 above if on the facts shown he could have been found guilty of thatoffence in proceedings for that offence commenced before the expiry of any time limit underthis section applicable to such proceedings.

(9) Subsection (8) above shall apply whether or not an offence under section 1 above hasbeen libelled in the complaint or indictment.

(10) A person found guilty of an offence under section 1 above by virtue of subsection (8)above shall be liable, in respect of that offence, only to the penalties set out in section 1.

(11) This section extends to Scotland only.

14 Search warrants for offences under section 1(1) Where a circuit judge is satisfied by information on oath given by a constable that

there are reasonable grounds for believing—(a) that an offence under section 1 above 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 suchreasonable force as is necessary.

(2) The power conferred by subsection (1) above does not extend to authorising a searchfor material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act1984 (privileged, excluded and special procedure material).

Computer Misuse Act 1990 65

(3) A warrant under this section—(a) may authorise persons to accompany any constable executing the warrant;

and(b) remains in force for twenty-eight days from the date of its issue.

(4) In executing a warrant issued under this section a constable may seize an article if hereasonably believes that it is evidence that an offence under section 1 above has been or isabout to be committed.*

(5) In this section ‘premises’ includes land, buildings, movable structures, vehicles,vessels, aircraft and hovercraft.

(6) This section does not extend to Scotland.

15 Extradition where Schedule 1 to the Extradition Act 1989 applies. 1870 c. 52The offences to which an Order in Council under section 2 of the Extradition Act 1870 canapply shall include—

(a) offences under section 2 or 3 above;(b) any conspiracy to commit such an offence; and(c) any attempt to commit an offence under section 3 above.

16 Application to Northern Ireland†(1) The following provisions of this section have effect for applying this Act in relation to

Northern Ireland with the modifications there mentioned.(2) In section 2(2)(b)—

(a) the reference to England and Wales shall be read as a reference to NorthernIreland; and

(b) the reference to section 33 of the Magistrates’ Courts Act 1980 shall be readas a reference to Article 46(4) of the Magistrates’ Courts (Northern Ireland) Order1981.

(3) The reference in section 3(6) to the Criminal Damage Act 1971 shall be read as areference to the Criminal Damage (Northern Ireland) Order 1977.

(4) [Subsection (7) below shall apply in substitution for subsection (3) of section 7]; andany reference in subsection (4) of that section to England and Wales shall be read as a referenceto Northern Ireland.

(5) . . .(6) . . .(7) The following paragraphs shall be inserted after Article 3(1) of that Order—‘(1A) Subject to section 8 of the Computer Misuse Act 1990 (relevance of external law), if

this paragraph applies to an act, what the person doing it had in view shall be treated as anoffence to which this Article applies.

(1B) Paragraph (1A) above applies to an act if—(a) it is done in Northern Ireland; and(b) it would fall within paragraph (1) as more than merely preparatory to the com-

mission of an offence under section 3 of the Computer Misuse Act 1990 but for thefact that the offence, if completed, would not be an offence triable in NorthernIreland.’.

(8) In section 8—(a) . . .(b) the reference in subsection (3) to section 1(1A) of the Criminal Attempts Act 1981

shall be read as a reference to Article 3(1A) of that Order.

* See Criminal Justice and Police Act 2001 c. 16 ss. 50 and 55, sch. 1 paras 51 and 107.† Amendments to this section in force 4 September 1998: see Criminal Justice (Terrorism and Conspir-

acy) Act 1998 s. 9, sch. 1 para. 6 and sch. 2.

66 Computer Misuse Act 1990

(9) The references in sections 9(1) and 10 to England and Wales shall be read as referencesto Northern Ireland.

(10) In section 11, for subsection (1) there shall be substituted—‘(1) A magistrates’ court for a county division in Northern Ireland may hear and

determine a complaint charging an offence under section 1 above or conduct a preliminaryinvestigation or preliminary inquiry into an offence under that section if—

(a) the accused was in that division at the time when he did the act which caused thecomputer to perform the function; or

(b) any computer containing any program or data to which the accused secured orintended to secure unauthorised access by doing that act was in that division atthat time.’;

and subsection (6) shall be omitted.(11) The reference in section 12(3) to section 6(3) of the Criminal Law Act 1967

shall be read as a reference to section 6(2) of the Criminal Law Act (Northern Ireland)1967.

(12) In section 14—(a) the reference in subsection (1) to a circuit judge shall be read as a reference to a

county court judge; and(b) the reference in subsection (2) to section 9(2) of the Police and Criminal Evidence

Act 1984 shall be read as a reference to Article 11(2) of the Police and CriminalEvidence (Northern Ireland) Order 1989.

17 Interpretation(1) The following provisions of this section apply for the interpretation of this Act.(2) A person secures access to any program or data held in a computer if by causing a

computer to perform any function he—(a) alters or erases the program or data;(b) copies or moves it to any storage medium other than that in which it is held or to a

different location in the storage medium in which it is held;(c) uses it; or(d) has it output from the computer in which it is held (whether by having it

displayed or in any other manner);and references to access to a program or data (and to an intent to secure such access) shall beread accordingly.

(3) For the purposes of subsection (2)(c) above a person uses a program if the function hecauses the computer to perform—

(a) causes the program to be executed; or(b) is itself a function of the program.

(4) For the purposes of subsection (2)(d) above—(a) a program is output if the instructions of which it consists are output;

and(b) the form in which any such instructions or any other data is output (and in

particular whether or not it represents a form in which, in the case of instructions,they are capable of being executed or, in the case of data, it is capable of beingprocessed by a computer) is immaterial.

(5) Access of any kind by any person to any program or data held in a computer isunauthorised if—

(a) he is not himself entitled to control access of the kind in question to the programor data; and

(b) he does not have consent to access by him of the kind of question to the programor data from any person who is so entitled.

[but this subsection is subject to section 10].

Computer Misuse Act 1990 67

(6) References to any program or data held in a computer include references to anyprogram or data held in any removable storage medium which is for the time being in thecomputer; and a computer is to be regarded as containing any program or data held in anysuch medium.

(7) A modification of the contents of any computer takes place if, by the operation of anyfunction of the computer concerned or any other computer—

(a) any program or data held in the computer concerned is altered or erased; or(b) any program or data is added to its contents;

and any act which contributes towards causing such a modification shall be regarded ascausing it.

(8) Such a modification is unauthorised if—(a) the person whose act causes it is not himself entitled to determine whether the

modification should be made; and(b) he does not have consent to the modification from any person who is so entitled.

(9) References to the home country concerned shall be read in accordance with section4(6) above.

(10) References to a program include references to part of a program.

18 Citation, commencement etc.(1) This Act may be cited as the Computer Misuse Act 1990.(2) This Act shall come into force at the end of the period of two months beginning with

the day on which it is passed.(3) An offence is not committed under this Act unless every act or other event

proof of which is required for conviction of the offence takes place after this Act comes intoforce.

Trade Marks Act 1994(1994, c. 26)

An Act to make new provision for registered trade marks, implementing Council Directive No. 89/

104/EEC of 21st December 1988 to approximate the laws of the Member States relating to trade

marks; to make provision in connection with Council Regulation (EC) No. 40/94 of 20th December

1993 on the Community trade mark; to give effect to the Madrid Protocol Relating to the Inter-

national Registration of Marks of 27th June 1989, and to certain provisions of the Paris Convention

for the Protection of Industrial Property of 20th March 1883, as revised and amended; and for

connected purposes. [21st July 1994]

PART I REGISTERED TRADE MARKS

Introductory

1 Trade marks(1) In this Act a ‘trade mark’ means any sign capable of being represented graphically

which is capable of distinguishing goods or services of one undertaking from those of otherundertakings.

A trade mark may, in particular, consist of words (including personal names), designs,letters, numerals or the shape of goods or their packaging.

(2) References in this Act to a trade mark include, unless the context otherwise requires,references to a collective mark (see section 49) or certification mark (see section 50).

68 Trade Marks Act 1994

2 Registered trade marks(1) A registered trade mark is a property right obtained by the registration of the trade

mark under this Act and the proprietor of a registered trade mark has the rights and remediesprovided by this Act.

(2) No proceedings lie to prevent or recover damages for the infringement of anunregistered trade mark as such; but nothing in this Act affects the law relating to passing off.

Grounds for refusal of registration

3 Absolute grounds for refusal of registration(1) The following shall not be registered—

(a) signs which do not satisfy the requirements of section 1(1),(b) trade marks which are devoid of any distinctive character,(c) trade marks which consist exclusively of signs or indications which may serve,

in trade, to designate the kind, quality, quantity, intended purpose, value,geographical origin, the time of production of goods or of rendering of services, orother characteristics of goods or services,

(d) trade marks which consist exclusively of signs or indications which have becomecustomary in the current language or in the bona fide and established practices ofthe trade:

Provided that, a trade mark shall not be refused registration by virtue of paragraph (b), (c) or(d) above if, before the date of application for registration, it has in fact acquired a distinctivecharacter as a result of the use made of it.

(2) A sign shall not be registered as a trade mark if it consists exclusively of—(a) the shape which results from the nature of the goods themselves,(b) the shape of goods which is necessary to obtain a technical result, or(c) the shape which gives substantial value to the goods.

(3) A trade mark shall not be registered if it is—(a) contrary to public policy or to accepted principles of morality, or(b) of such a nature as to deceive the public (for instance as to the nature, quality or

geographical origin of the goods or service).(4) A trade mark shall not be registered if or to the extent that its use is prohibited in the

United Kingdom by any enactment or rule of law or by any provision of Community law.(5) A trade mark shall not be registered in the cases specified, or referred to, in section 4

(specially protected emblems).(6) A trade mark shall not be registered if or to the extent that the application is made in

bad faith.

4 Specially protected emblems(1) A trade mark which consists of or contains—

(a) the Royal arms, or any of the principal armorial bearings of the Royal arms, orany insignia or device so nearly resembling the Royal arms or any such armorialbearing as to be likely to be mistaken for them or it,

(b) a representation of the Royal crown or any of the Royal flags,(c) a representation of Her Majesty or any member of the Royal family, or any

colourable imitation thereof, or(d) words, letters or devices likely to lead persons to think that the applicant either

has or recently has had Royal patronage or authorisation,shall not be registered unless it appears to the registrar that consent has been given by or onbehalf of Her Majesty or, as the case may be, the relevant member of the Royal family.

(2) A trade mark which consists of or contains a representation of—(a) the national flag of the United Kingdom (commonly known as the Union Jack), or(b) the flag of England, Wales, Scotland, Northern Ireland or the Isle of Man,

Trade Marks Act 1994 69

shall not be registered if it appears to the registrar that the use of the trade mark would bemisleading or grossly offensive.

Provision may be made by rules identifying the flags to which paragraph (b) applies.(3) A trade mark shall not be registered in the cases specified in—

section 57 (national emblems, etc. of Convention countries), orsection 58 (emblems, etc. of certain international organisations).

(4) Provision may be made by rules prohibiting in such cases as may be prescribed theregistration of a trade mark which consists of or contains—

(a) arms to which a person is entitled by virtue of a grant of arms by the Crown, or(b) insignia so nearly resembling such arms as to be likely to be mistaken for them,

unless it appears to the registrar that consent has been given by or on behalf of that person.Where such a mark is registered, nothing in this Act shall be construed as authorising its use

in any way contrary to the laws of arms.[(5) A trade mark which consists of or contains a controlled representation within the

meaning of the Olympic Symbol etc. (Protection) Act 1995 shall not be registered unless itappears to the registrar—

(a) that the application is made by the person for the time being appointed undersection 1(2) of the Olympic Symbol etc. (Protection) Act 1995 (power of Secretaryof State to appoint a person as the proprietor of the Olympics association right), or

(b) that consent has been given by or on behalf of the person mentioned in paragraph(a) above.]

5 Relative grounds for refusal of registration(1) A trade mark shall not be registered if it is identical with an earlier trade mark and the

goods or services for which the trade mark is applied for are identical with the goods orservices for which the earlier trade mark is protected.

(2) A trade mark shall not be registered if because—(a) it is identical with an earlier trade mark and is to be registered for goods or services

similar to those for which the earlier trade mark is protected, or(b) it is similar to an earlier trade mark and is to be registered for goods or services

identical with or similar to those for which the earlier trade mark is protected,there exists a likelihood of confusion on the part of the public, which includes the likelihoodof association with the earlier trade mark.

(3) A trade mark which—(a) is identical with or similar to an earlier trade mark, and(b) is to be registered for goods or services which are not similar to those for which the

earlier trade mark is protected,shall not be registered if, or to the extent that, the earlier trade mark has a reputation in theUnited Kingdom (or, in the case of a Community trade mark, in the European Community)and the use of the later mark without due cause would take unfair advantage of, or bedetrimental to, the distinctive character or the repute of the earlier trade mark.

(4) A trade mark shall not be registered if, or to the extent that, its use in the UnitedKingdom is liable to be prevented—

(a) by virtue of any rule of law (in particular, the law of passing off) protecting anunregistered trade mark or other sign used in the course of trade, or

(b) by virtue of an earlier right other than those referred to in subsections (1) to (3) orparagraph (a) above, in particular by virtue of the law of copyright, design rightor registered designs.

A person thus entitled to prevent the use of a trade mark is referred to in this Act as theproprietor of an ‘earlier right’ in relation to the trade mark.

(5) Nothing in this section prevents the registration of a trade mark where the proprietorof the earlier trade mark or other earlier right consents to the registration.

70 Trade Marks Act 1994

6 Meaning of ‘earlier trade mark’(1) In this Act an ‘earlier trade mark’ means—

(a) a registered trade mark, international trade mark (UK) or Community trade markwhich has a date of application for registration earlier than that of the trademark in question, taking account (where appropriate) of the priorities claimed inrespect of the trade marks,

(b) a Community trade mark which has a valid claim to seniority from an earlierregistered trade mark or international trade mark (UK), or

(c) a trade mark which, at the date of application for registration of the trade markin question or (where appropriate) of the priority claimed in respect of theapplication, was entitled to protection under the Paris Convention [or the WTOagreement*] as a well known trade mark.

(2) References in this Act to an earlier trade mark include a trade mark in respect of whichan application for registration has been made and which, if registered, would be an earliertrade mark by virtue of subsection (1)(a) or (b), subject to its being so registered.

(3) A trade mark within subsection (1)(a) or (b) whose registration expires shall continueto be taken into account in determining the registrability of a later mark for a period of oneyear after the expiry unless the registrar is satisfied that there was no bona fide use of the markduring the two years immediately preceding the expiry.

7 Raising of relative grounds in case of honest concurrent use(1) This section applies where on an application for the registration of a trade mark it

appears to the registrar—(a) that there is an earlier trade mark in relation to which the conditions set out in

section 5(1), (2) or (3) obtain, or(b) that there is an earlier right in relation to which the condition set out in section

5(4) is satisfied,but the applicant shows to the satisfaction of the registrar that there has been honestconcurrent use of the trade mark for which registration is sought.

(2) In that case the registrar shall not refuse the application by reason of the earlier trademark or other earlier right unless objection on that ground is raised in opposition proceedingsby the proprietor of that earlier trade mark or other earlier right.

(3) For the purposes of this section ‘honest concurrent use’ means such use in the UnitedKingdom, by the applicant or with his consent, as would formerly have amounted to honestconcurrent use for the purposes of section 12(2) of the Trade Marks Act 1938.

(4) Nothing in this section affects—(a) the refusal of registration on the grounds mentioned in section 3 (absolute

grounds for refusal), or(b) the making of an application for a declaration of invalidity under section 47(2)

(application on relative grounds where no consent to registration).(5) This section does not apply when there is an order in force under section 8 below.

Effects of registered trade mark

9 Rights conferred by registered trade mark(1) The proprietor of a registered trade mark has exclusive rights in the trade mark which

are infringed by use of the trade mark in the United Kingdom without his consent.The acts amounting to infringement, if done without the consent of the proprietor, are

specified in section 10.(2) References in this Act to the infringement of a registered trade mark are to any such

infringement of the rights of the proprietor.

* Amendment in force 29 July 1999: see SI 1999/1899 r. 1.

Trade Marks Act 1994 71

(3) The rights of the proprietor have effect from the date of registration (which inaccordance with section 40(3) is the date of filing of the application for registration):

Provided that—(a) no infringement proceedings may be begun before the date on which the trade

mark is in fact registered; and(b) no offence under section 92 (unauthorised use of trade mark, &c. in relation to

goods) is committed by anything done before the date of publication of theregistration.

10 Infringement of registered trade mark(1) A person infringes a registered trade mark if he uses in the course of trade a sign which

is identical with the trade mark in relation to goods or services which are identical with thosefor which it is registered.

(2) A person infringes a registered trade mark if he uses in the course of trade a sign wherebecause—

(a) the sign is identical with the trade mark and is used in relation to goods or servicessimilar to those for which the trade mark is registered, or

(b) the sign is similar to the trade mark and is used in relation to goods or servicesidentical with or similar to those for which the trade mark is registered,

there exists a likelihood of confusion on the part of the public, which includes the likelihoodof association with the trade mark.

(3) A person infringes a registered trade mark if he uses in the course of trade a signwhich—

(a) is identical with or similar to the trade mark, and(b) is used in relation to goods or services which are not similar to those for which the

trade mark is registered,where the trade mark has a reputation in the United Kingdom and the use of the sign, beingwithout due cause, takes unfair advantage of, or is detrimental to, the distinctive character orthe repute of the trade mark.

(4) For the purposes of this section a person uses a sign if, in particular, he—(a) affixes it to goods or the packaging thereof;(b) offers or exposes goods for sale, puts them on the market or stocks them for those

purposes under the sign, or offers or supplies services under the sign;(c) imports or exports goods under the sign; or(d) uses the sign on business papers or in advertising.

(5) A person who applies a registered trade mark to material intended to be used forlabelling or packaging goods, as a business paper, or for advertising goods or services, shall betreated as a party to any use of the material which infringes the registered trade mark if whenhe applied the mark he knew or had reason to believe that the application of the mark was notduly authorised by the proprietor or a licensee.

(6) Nothing in the preceding provisions of this section shall be construed as preventingthe use of a registered trade mark by any person for the purpose of identifying goods orservices as those of the proprietor or a licensee.

But any such use otherwise than in accordance with honest practices in industrial or com-mercial matters shall be treated as infringing the registered trade mark if the use without duecause takes unfair advantage of, or is detrimental to, the distinctive character or repute of thetrade mark.

11 Limits on effect of registered trade mark(1) A registered trade mark is not infringed by the use of another registered trade mark in

relation to goods or services for which the latter is registered (but see section 47(6) (effect ofdeclaration of invalidity of registration)).

(2) A registered trade mark is not infringed by—

72 Trade Marks Act 1994

(a) the use by a person of his own name or address,(b) the use of indications concerning the kind, quality, quantity, intended purpose,

value, geographical origin, the time of production of goods or of rendering ofservices, or other characteristics of goods or services, or

(c) the use of the trade mark where it is necessary to indicate the intended purpose ofa product or service (in particular, as accessories or spare parts),

provided the use is in accordance with honest practices in industrial or commercial matters.(3) A registered trade mark is not infringed by the use in the course of trade in a particular

locality of an earlier right which applies only in that locality.For this purpose an ‘earlier right’ means an unregistered trade mark or other sign con-

tinuously used in relation to goods or services by a person or a predecessor in title of his froma date prior to whichever is the earlier of—

(a) the use of the first-mentioned trade mark in relation to those goods or services bythe proprietor or a predecessor in title of his, or

(b) the registration of the first-mentioned trade mark in respect of those goods orservices in the name of the proprietor or a predecessor in title of his;

and an earlier right shall be regarded as applying in a locality if, or to the extent that, its use inthat locality is protected by virtue of any rule of law (in particular, the law of passing off).

12 Exhaustion of rights conferred by registered trade mark(1) A registered trade mark is not infringed by the use of the trade mark in relation to

goods which have been put on the market in the European Economic Area under that trademark by the proprietor or with his consent.

(2) Subsection (1) does not apply where there exist legitimate reasons for the proprietor tooppose further dealings in the goods (in particular, where the condition of the goods has beenchanged or impaired after they have been put on the market).

13 Registration subject to disclaimer or limitation(1) An applicant for registration of a trade mark, or the proprietor of a registered trade

mark, may—(a) disclaim any right to the exclusive use of any specified element of the trade mark,

or(b) agree that the rights conferred by the registration shall be subject to a specified

territorial or other limitation;and where the registration of a trade mark is subject to a disclaimer or limitation, the rightsconferred by section 9 (rights conferred by registered trade mark) are restricted accordingly.

(2) Provision shall be made by rules as to the publication and entry in the register of adisclaimer or limitation.

Infringement proceedings

14 Action for infringement(1) An infringement of a registered trade mark is actionable by the proprietor of the trade

mark.(2) In an action for infringement all such relief by way of damages, injunctions, accounts

or otherwise is available to him as is available in respect of the infringement of any otherproperty right.

15 Order for erasure, etc. of offending sign(1) Where a person is found to have infringed a registered trade mark, the court may

make an order requiring him—(a) to cause the offending sign to be erased, removed or obliterated from any

infringing goods, material or articles in his possession, custody or control, or

Trade Marks Act 1994 73

(b) if it is not reasonably practicable for the offending sign to be erased, removed orobliterated, to secure the destruction of the infringing goods, material or articlesin question.

(2) If an order under subsection (1) is not complied with, or it appears to the court likelythat such an order would not be complied with, the court may order that the infringing goods,material or articles be delivered to such person as the court may direct for erasure, removal orobliteration of the sign, or for destruction, as the case may be.

21 Remedy for groundless threats of infringement proceedings(1) Where a person threatens another with proceedings for infringement of a registered

trade mark other than—(a) the application of the mark to goods or their packaging,(b) the importation of goods to which, or to the packaging of which, the mark has

been applied, or(c) the supply of services under the mark,

any person aggrieved may bring proceedings for relief under this section.(2) The relief which may be applied for is any of the following—

(a) a declaration that the threats are unjustifiable,(b) an injunction against the continuance of the threats,(c) damages in respect of any loss he has sustained by the threats;

and the plaintiff is entitled to such relief unless the defendant shows that the acts in respect ofwhich proceedings were threatened constitute (or if done would constitute) an infringementof the registered trade mark concerned.

(3) If that is shown by the defendant, the plaintiff is nevertheless entitled to relief if heshows that the registration of the trade mark is invalid or liable to be revoked in a relevantrespect.

(4) The mere notification that a trade mark is registered, or that an application forregistration has been made, does not constitute a threat of proceedings for the purposes ofthis section.

Registered trade mark as object of property

22 Nature of registered trade markA registered trade mark is personal property (in Scotland, incorporeal moveableproperty).

23 Co-ownership of registered trade mark(1) Where a registered trade mark is granted to two or more persons jointly, each of them

is entitled, subject to any agreement to the contrary, to an equal undivided share in theregistered trade mark.

(2) The following provisions apply where two or more persons are co-proprietors of aregistered trade mark, by virtue of subsection (1) or otherwise.

(3) Subject to any agreement to the contrary, each co-proprietor is entitled, by himself orhis agents, to do for his own benefit and without the consent of or the need to account to theother or others, any act which would otherwise amount to an infringement of the registeredtrade mark.

(4) One co-proprietor may not without the consent of the other or others—(a) grant a licence to use the registered trade mark, or(b) assign or charge his share in the registered trade mark (or, in Scotland, cause or

permit security to be granted over it).(5) Infringement proceedings may be brought by any co-proprietor, but be may not,

without the leave of the court, proceed with the action unless the other, or each of the others,is either joined as a plaintiff or added as a defendant.

74 Trade Marks Act 1994

A co-proprietor who is thus added as a defendant shall not be made liable for any costs inthe action unless he takes part in the proceedings.

Nothing in this subsection affects the granting of interlocutory relief on the application ofa single co-proprietor.

(6) Nothing in this section affects the mutual rights and obligations of trustees orpersonal representatives, or their rights and obligations as such.

24 Assignment, etc. of registered trade mark(1) A registered trade mark is transmissible by assignment, testamentary disposition or

operation of law in the same way as other personal or moveable property.It is so transmissible either in connection with the goodwill of a business or independently.

(2) An assignment or other transmission of a registered trade mark may be partial, that is,limited so as to apply—

(a) in relation to some but not all of the goods or services for which the trade mark isregistered, or

(b) in relation to use of the trade mark in a particular manner or a particular locality.(3) An assignment of a registered trade mark, or an assent relating to a registered trade

mark, is not effective unless it is in writing signed by or on behalf of the assignor or, as the casemay be, a personal representative.

Except in Scotland, this requirement may be satisfied in a case where the assignor orpersonal representative is a body corporate by the affixing of its seal.

(4) The above provisions apply to assignment by way of security as in relation to anyother assignment.

(5) A registered trade mark may be the subject of a charge (in Scotland, security) in thesame way as other personal or moveable property.

(6) Nothing in this Act shall be construed as affecting the assignment or othertransmission of an unregistered trade mark as part of the good will of a business.

Licensing

28 Licensing of registered trade mark(1) A licence to use a registered trade mark may be general or limited.

A limited licence may, in particular, apply—(a) in relation to some but not all of the goods or services for which the trade mark is

registered, or(b) in relation to use of the trade mark in a particular manner or a particular locality.

(2) A licence is not effective unless it is in writing signed by or on behalf of the grantor.Except in Scotland, this requirement may be satisfied in a case where the grantor is a body

corporate by the affixing of its seal.(3) Unless the licence provides otherwise, it is binding on a successor in title to the

grantor’s interest.References in this Act to doing anything with, or without, the consent of the proprietor of a

registered trade mark shall be construed accordingly.(4) Where the licence so provides, a sub-licence may be granted by the licensee; and

references in this Act to a licence or licensee include a sublicence or sub-licensee.

29 Exclusive licences(1) In this Act an ‘exclusive licence’ means a licence (whether general or limited)

authorising the licensee to the exclusion of all other persons, including the person grantingthe licence, to use a registered trade mark in the manner authorised by the licence.

The expression ‘exclusive licensee’ shall be construed accordingly.(2) An exclusive licensee has the same rights against a successor in title who is bound by

the licence as he has against the person granting the licence.

Trade Marks Act 1994 75

30 General provisions as to rights of licensees in case of infringement(1) This section has effect with respect to the rights of a licensee in relation to infringe-

ment of a registered trade mark.The provisions of this section do not apply where or to the extent that, by virtue of section

31(1) below (exclusive licensee having rights and remedies of assignee), the licensee has aright to bring proceedings in his own name.

(2) A licensee is entitled, unless his licence, or any licence through which his interest isderived, provides otherwise, to call on the proprietor of the registered trade mark to takeinfringement proceedings in respect of any matter which affects his interests.

(3) If the proprietor—(a) refuses to do so, or(b) fails to do so within two months after being called upon,

the licensee may bring the proceedings in his own name as if he were the proprietor.(4) Where infringement proceedings are brought by a licensee by virtue of this section,

the licensee may not, without the leave of the court, proceed with the action unless theproprietor is either joined as a plaintiff or added as a defendant.

This does not affect the granting of interlocutory relief on an application by a licenseealone.

(5) A proprietor who is added as a defendant as mentioned in subsection (4) shall not bemade liable for any costs in the action unless he takes part in the proceedings.

(6) In infringement proceedings brought by the proprietor of a registered trade markany loss suffered or likely to be suffered by licensees shall be taken into account; and the courtmay give such directions as it thinks fit as to the extent to which the plaintiff is to hold theproceeds of any pecuniary remedy on behalf of licensees.

(7) The provisions of this section apply in relation to an exclusive licensee if or to theextent that he has, by virtue of section 31(1), the rights and remedies of an assignee as if hewere the proprietor of the registered trade mark.

31 Exclusive licensee having rights and remedies of assignee(1) An exclusive licence may provide that the licensee shall have, to such extent as may

be provided by the licence, the same rights and remedies in respect of matters occurring afterthe grant of the licence as if the licence had been an assignment.

Where or to the extent that such provision is made, the licensee is entitled, subject to theprovisions of the licence and to the following provisions of this section, to bring infringementproceedings, against any person other than the proprietor, in his own name.

(2) Any such rights and remedies of an exclusive licensee are concurrent with thoseof the proprietor of the registered trade mark; and references to the proprietor of a registeredtrade mark in the provisions of this Act relating to infringement shall be construedaccordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant mayavail himself of any defence which would have been available to him if the action had beenbrought by the proprietor of the registered trade mark.

(4) Where proceedings for infringement of a registered trade mark brought by theproprietor or an exclusive licensee relate wholly or partly to an infringement in respectof which they have concurrent rights of action, the proprietor or, as the case may be, theexclusive licensee may not, without the leave of the court, proceed with the action unlessthe other is either joined as a plaintiff or added as a defendant.

This does not affect the granting of interlocutory relief on an application by a proprietor orexclusive licensee alone.

(5) A person who is added as a defendant as mentioned in subsection (4) shall not bemade liable for any costs in the action unless he takes part in the proceedings.

(6) Where an action for infringement of a registered trade mark is brought which relates

76 Trade Marks Act 1994

wholly or partly to an infringement in respect of which the proprietor and an exclusivelicensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account—(i) the terms of the licence, and(ii) any pecuniary remedy already awarded or available to either of them in

respect of the infringement;(b) no account of profits shall be directed if an award of damages has been made, or an

account of profits has been directed, in favour of the other of them in respect ofthe infringement; and

(c) the court shall if an account of profits is directed apportion the profits betweenthem as the court considers just, subject to any agreement between them.

The provisions of this subsection apply whether or not the proprietor and the exclusivelicensee are both parties to the action; and if they are not both parties the court may give suchdirections as it thinks fit as to the extent to which the party to the proceedings is to hold theproceeds of any pecuniary remedy on behalf of the other.

(7) The proprietor of a registered trade mark shall notify any exclusive licensee who has aconcurrent right of action before applying for an order under section 16 (order for deliveryup); and the court may on the application of the licensee make such order under that sectionas it thinks fit having regard to the terms of the licence.

(8) The provisions of subsections (4) to (7) above have effect subject to any agreement tothe contrary between the exclusive licensee and the proprietor.

Application for registered trade mark

32 Application for registration(1) An application for registration of a trade mark shall be made to the registrar.(2) The application shall contain—

(a) a request for registration of a trade mark,(b) the name and address of the applicant,(c) a statement of the goods or services in relation to which it is sought to register the

trade mark, and(d) a representation of the trade mark.

(3) The application shall state that the trade mark is being used, by the applicant or withhis consent, in relation to those goods or services, or that he has a bona fide intention that itshould be so used.

(4) The application shall be subject to the payment of the application fee and such classfees as may be appropriate.

Priority

35 Claim to priority of Convention application(1) A person who has duly filed an application for protection of a trade mark in a Conven-

tion country (a ‘Convention application’), or his successor in title, has a right to priority, forthe purposes of registering the same trade mark under this Act for some or all of the samegoods or services, for a period of six months from the date of filing of the first suchapplication.

(2) If the application for registration under this Act is made within that six-monthperiod—

(a) the relevant date for the purposes of establishing which rights take precedenceshall be the date of filing of the first Convention application, and

(b) the registrability of the trade mark shall not be affected by any use of the mark inthe United Kingdom in the period between that date and the date of the applica-tion under this Act.

Trade Marks Act 1994 77

(3) Any filing which in a Convention country is equivalent to a regular national filing,under its domestic legislation or an international agreement, shall be treated as giving rise tothe right of priority.

A ‘regular national filing’ means a filing which is adequate to establish the date on whichthe application was filed in that country, whatever may be the subsequent fate of theapplication.

(4) A subsequent application concerning the same subject as the first Conventionapplication, filed in the same Convention country, shall be considered the first Con-vention application (of which the filing date is the starting date of the period of priority), ifat the time of the subsequent application—

(a) the previous application has been withdrawn, abandoned or refused, withouthaving been laid open to public inspection and without leaving any rightsoutstanding, and

(b) it has not yet served as a basis for claiming a right of priority.The previous application may not thereafter serve as a basis for claiming a right of priority.

(5) Provision may be made by rules as to the manner of claiming a right to priority on thebasis of a Convention application.

(6) A right to priority arising as a result of a Convention application may be assigned orotherwise transmitted, either with the application or independently.

The reference in subsection (1) to the applicant’s ‘successor in title’ shall be construedaccordingly.

Duration, renewal and alteration of registered trade mark

42 Duration of registration(1) A trade mark shall be registered for a period of ten years from the date of registration.(2) Registration may be renewed in accordance with section 43 for further periods of ten

years.

43 Renewal of registration(1) The registration of a trade mark may be renewed at the request of the proprietor,

subject to payment of a renewal fee.(2) Provision shall be made by rules for the registrar to inform the proprietor of a

registered trade mark, before the expiry of the registration, of the date of expiry and themanner in which the registration may be renewed.

(3) A request for renewal must be made, and the renewal fee paid, before the expiry of theregistration.

Failing this, the request may be made and the fee paid within such further period (of not lessthan six months) as may be prescribed, in which case an additional renewal fee must also bepaid within that period.

(4) Renewal shall take effect from the expiry of the previous registration.(5) If the registration is not renewed in accordance with the above provisions, the

registrar shall remove the trade mark from the register.Provision may be made by rules for the restoration of the registration of a trade mark which

has been removed from the register, subject to such conditions (if any) as may be prescribed.(6) The renewal or restoration of the registration of a trade mark shall be published in the

prescribed manner.

44 Alteration of registered trade mark(1) A registered trade mark shall not be altered in the register, during the period of

registration or on renewal.(2) Nevertheless, the registrar may, at the request of the proprietor, allow the alteration

of a registered trade mark where the mark includes the proprietor’s name or address and the

78 Trade Marks Act 1994

alteration is limited to alteration of that name or address and does not substantially affectthe identity of the mark.

(3) Provision shall be made by rules for the publication of any such alteration and themaking of objections by any person claiming to be affected by it.

Surrender, revocation and invalidity

45 Surrender of registered trade mark(1) A registered trade mark may be surrendered by the proprietor in respect of some or all

of the goods or services for which it is registered.(2) Provision may be made by rules—

(a) as to the manner and effect of a surrender, and(b) for protecting the interests of other persons having a right in the registered trade

mark.

46 Revocation of registration(1) The registration of a trade mark may be revoked on any of the following grounds—

(a) that within the period of five years following the date of completion of theregistration procedure it has not been put to genuine use in the United Kingdom,by the proprietor or with his consent, in relation to the goods or services for whichit is registered, and there are no proper reasons for non-use;

(b) that such use has been suspended for an uninterrupted period of five years, andthere are no proper reasons for non-use;

(c) that, in consequence of acts or inactivity of the proprietor, it has become thecommon name in the trade for a product or service for which it is registered;

(d) that in consequence of the use made of it by the proprietor or with his consent inrelation to the goods or services for which it is registered, it is liable to mislead thepublic, particularly as to the nature, quality or geographical origin of those goodsor services.

(2) For the purposes of subsection (1) use of a trade mark includes use in a form differingin elements which do not alter the distinctive character of the mark in the form in which itwas registered, and use in the United Kingdom includes affixing the trade mark to goods or tothe packaging of goods in the United Kingdom solely for export purposes.

(3) The registration of a trade mark shall not be revoked on the ground mentioned insubsection (1)(a) or (b) if such use as is referred to in that paragraph is commenced or resumedafter the expiry of the five year period and before the application for revocation is made:

Provided that, any such commencement or resumption of use after the expiry of the fiveyear period but within the period of three months before the making of the application shallbe disregarded unless preparations for the commencement or resumption began before theproprietor became aware that the application might be made.

(4) An application for revocation may be made by any person, and may be made either tothe registrar or to the court, except that—

(a) if proceedings concerning the trade mark in question are pending in the court, theapplication must be made to the court; and

(b) if in any other case the application is made to the registrar, he may at any stage ofthe proceedings refer the application to the court.

(5) Where grounds for revocation exist in respect of only some of the goods or services forwhich the trade mark is registered, revocation shall relate to those goods or services only.

(6) Where the registration of a trade mark is revoked to any extent, the rights of theproprietor shall be deemed to have ceased to that extent as from—

(a) the date of the application for revocation, or(b) if the registrar or court is satisfied that the grounds for revocation existed at an

earlier date, that date.

Trade Marks Act 1994 79

47 Grounds for invalidity of registration(1) The registration of a trade mark may be declared invalid on the ground that the trade

mark was registered in breach of section 3 or any of the provisions referred to in that section(absolute grounds for refusal of registration).

Where the trade mark was registered in breach of subsection (1)(b), (c) or (d) of that section,it shall not be declared invalid if, in consequence of the use which has been made of it, it hasafter registration acquired a distinctive character in relation to the goods or services for whichit is registered.

(2) The registration of a trade mark may be declared invalid on the ground—(a) that there is an earlier trade mark in relation to which the conditions set out in

section 5(1), (2) or (3) obtain, or(b) that there is an earlier right in relation to which the condition set out in section

5(4) is satisfied,unless the proprietor of that earlier trade mark or other earlier right has consented to theregistration.

(3) An application for a declaration of invalidity may be made by any person, and may bemade either to the registrar or to the court, except that—

(a) if proceedings concerning the trade mark in question are pending in the court, theapplication must be made to the court; and

(b) if in any other case the application is made to the registrar, he may at any stage ofthe proceedings refer the application to the court.

(4) In the case of bad faith in the registration of a trade mark, the registrar himself mayapply to the court for a declaration of the invalidity of the registration.

(5) Where the grounds of invalidity exist in respect of only some of the goods or servicesfor which the trade mark is registered, the trade mark shall be declared invalid as regards thosegoods or services only.

(6) Where the registration of a trade mark is declared invalid to any extent, theregistration shall to that extent be deemed never to have been made:

Provided that this shall not affect transactions past and closed.

48 Effect of acquiescence(1) Where the proprietor of an earlier trade mark or other earlier right has acquiesced for a

continuous period of five years in the use of a registered trade mark in the United Kingdom,being aware of that use, there shall cease to be any entitlement on the basis of that earlier trademark or other right—

(a) to apply for a declaration that the registration of the later trade mark is invalid, or(b) to oppose the use of the later trade mark in relation to the goods or services in

relation to which it has been so used,unless the registration of the later trade mark was applied for in bad faith.

(2) Where subsection (1) applies, the proprietor of the later trade mark is not entitled tooppose the use of the earlier trade mark or, as the case may be, the exploitation of the earlierright, notwithstanding that the earlier trade mark or right may no longer be invoked againsthis later trade mark.

PART II COMMUNITY TRADE MARKS ANDINTERNATIONAL MATTERS

The Paris Convention: supplementary provisions

56 Protection of well-known trade marks: Article 6bis*(1) References in this Act to a trade mark which is entitled to protection under the Paris

* Amendments in force 29 July 1999: see SI 1999/1899 r. 1.

80 Trade Marks Act 1994

Convention [or the WTO agreement] as a well known trade mark are to a mark which iswell-known in the United Kingdom as being the mark of a person who—

(a) is a national of a Convention country, or(b) is domiciled in, or has a real and effective industrial or commercial establishment

in, a Convention country,whether or not that person carries on business, or has any goodwill, in the UnitedKingdom.

References to the proprietor of such a mark shall be construed accordingly.(2) The proprietor of a trade mark which is entitled to protection under the Paris Con-

vention [or the WTO agreement] as a well known trade mark is entitled to restrain byinjunction the use in the United Kingdom of a trade mark which, or the essential part ofwhich, is identical or similar to his mark, in relation to identical or similar goods or services,where the use is likely to cause confusion.

This right is subject to section 48 (effect of acquiescence by proprietor of earlier trademark).

(3) Nothing in subsection (2) affects the continuation of any bona fide use of a trade markbegun before the commencement of this section.

PART IV MISCELLANEOUS AND GENERAL PROVISIONS

Miscellaneous

100 Burden of proving use of trade markIf in any civil proceedings under this Act a question arises as to the use to which aregistered trade mark has been put, it is for the proprietor to show what use has been madeof it.

Defamation Act 1996(1996, c. 31)

An Act to amend the law of defamation and to amend the law of limitation with respect to actions

for defamation or malicious falsehood. [4th July 1996]

Responsibility for publication

1 Responsibility for publication(1) In defamation proceedings a person has a defence if he shows that—

(a) he was not the author, editor or publisher of the statement complained of,(b) he took reasonable care in relation to its publication, and(c) he did not know, and had no reason to believe, that what he did caused or

contributed to the publication of a defamatory statement.(2) For this purpose ‘author’, ‘editor’ and ‘publisher’ have the following meanings,

which are further explained in subsection (3)—‘author’ means the originator of the statement, but does not include a person who did

not intend that his statement be published at all;‘editor’ means a person having editorial or equivalent responsibility for the content of

the statement or the decision to publish it; and‘publisher’ means a commercial publisher, that is, a person whose business is issuing

material to the public, or a section of the public, who issues material containing the statementin the course of that business.

Defamation Act 1996 81

(3) A person shall not be considered the author, editor or publisher of a statement if he isonly involved—

(a) in printing, producing, distributing or selling printed material containing thestatement;

(b) in processing, making copies of, distributing, exhibiting or selling a film or soundrecording (as defined in Part I of the Copyright, Designs and Patents Act 1988)containing the statement;

(c) in processing, making copies of, distributing or selling any electronic mediumin or on which the statement is recorded, or in operating or providing anyequipment, system or service by means of which the statement is retrieved,copied, distributed or made available in electronic form;

(d) as the broadcaster of a live programme containing the statement in circumstancesin which he has no effective control over the maker of the statement;

(e) as the operator of or provider of access to a communications system by means ofwhich the statement is transmitted, or made available, by a person over whom hehas no effective control.

In a case not within paragraphs (a) to (e) the court may have regard to those provisions byway of analogy in deciding whether a person is to be considered the author, editor or publisherof a statement.

(4) Employees or agents of an author, editor or publisher are in the same position as theiremployer or principal to the extent that they are responsible for the content of the statementor the decision to publish it.

(5) In determining for the purposes of this section whether a person took reasonable care,or had reason to believe that what he did caused or contributed to the publication of adefamatory statement, regard shall be had to—

(a) the extent of his responsibility for the content of the statement or the decision topublish it,

(b) the nature or circumstances of the publication, and(c) the previous conduct or character of the author, editor or publisher.

(6) This section does not apply to any cause of action which arose before the section cameinto force.

Supplementary provisions

17 Interpretation(1) In this Act—‘publication’ and ‘publish’, in relation to a statement, have the meaning they have for

the purposes of the law of defamation generally, but ‘publisher’ is specially defined for thepurposes of section 1;

‘statement’ means words, pictures, visual images, gestures or any other method ofsignifying meaning; . . .

Data Protection Act 1998

(1998, c. 29)

An Act to make new provision for the regulation of the processing of information relating to

individuals, including the obtaining, holding, use or disclosure of such information.

[16th July 1998]

82 Data Protection Act 1998