Copyright contravention and the modification of games consoles

by Dan Gaskell

About the Author Dan Gaskell is a Solicitor and Higher Courts Advocate with Tuckers Solicitors in the UK.

The Copyright Design and Patents Act 1988 (CDPA) was amended by Statutory Instrument on 31 October 2003 through the introduction of the Copyright and Related Rights Regulations 2003. The driving force behind this was an EC Directive and ought to have provided a consistent approach across the EC in respect of the issue of the modification of games consoles and what is or is not legal. The reality has seen quite a different approach being adopted in this country from the approach adopted in other member countries and in particular Italy, Spain and more recently France.

The Regulations extended section 296 of the CDPA and made it a criminal offence under s296ZB CDPA to, inter alia, manufacture, import, sell or advertise for sale devices, the primary purpose of which was to circumvent the Effective Technical Measures which are a security feature of games consoles manufactured by the likes of Sony, Microsoft and Nintendo. These devices are commonly known as modchips but take a number of different forms according to the technology in connection with which they are produced to function.

Since the introduction of the legislation a number of criminal Prosecutions have followed, the driving force behind which has been the Entertainment and Leisure Software Publishers Association (ELSPA) but it has only been in the last 12-18 months that the legislation has fully been tested to the point where certain conclusions can be reached as to what needs to be established to establish that criminal offences have been committed. In reaching certain conclusions however the Court of Appeal has nevertheless raised further issues for consideration in defending cases in the future...

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