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Copyright, Designs and Patents Act 1988

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[F1[F2296ZEA.Remedy where restrictive measures prevent or restrict personal copyingE+W+S+N.I.

(1)This section applies where an individual is prevented from making a personal copy of a copyright work, or is restricted in the number of personal copies of it which may be made, because of a restrictive measure applied by or on behalf of the copyright owner.

(2)That individual, or a person being a representative of a class of such individuals, may issue a notice of complaint to the Secretary of State.

(3)Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of—

(a)establishing whether any voluntary measure or agreement relevant to the copyright work subsists, or

(b)(where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant or the class of individuals represented by the complainant the means of benefiting from section 28B to the extent necessary to benefit from that section.

(4)In deciding whether to give such directions, the Secretary of State must consider whether the restrictive measure unreasonably prevents or restricts the making of personal copies, in particular having regard to—

(a)the right of the copyright owner to adopt adequate measures limiting the number of personal copies which may be made, and

(b)whether other copies of the work are commercially available on reasonable terms by or with the authority of the copyright owner in a form which does not prevent or unreasonably restrict the making of personal copies.

(5)The Secretary of State may also give directions—

(a)as to the form and manner in which a notice of complaint in subsection (2) may be delivered,

(b)as to the form and manner in which evidence of any voluntary measure or agreement may be delivered, and

(c)generally as to the procedure to be followed in relation to a complaint made under this section,

and shall publish directions given under this subsection in such manner as the Secretary of State thinks will secure adequate publicity for them.

(6)Subsections (5) to (8) of section 296ZE—

(a)apply to directions under subsection (3)(a) or (b) as they apply to directions under section 296ZE(3)(a) or (b), and

(b)apply to directions under subsection (5) as they apply to directions under section 296ZE(4).

(7)This section does not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(8)In this section—

  • “restrictive measure” means any technology, device or component designed, in the normal course of its operation, to protect the rights of copyright owners, which has the effect of preventing a copyright work from being copied (in whole or in part) or restricting the number of copies which may be made;

  • “personal copy” means a copy of a copyright work which may be made under section 28B;

  • “voluntary measure or agreement” has the same meaning as in section 296ZE, except that the reference to carrying out a permitted act is to be read as a reference to making a personal copy.

(9)Subsections (1) to (8) apply with any necessary adaptations to—

(a)rights in performances, and in this context “personal copy” refers to a copy of a recording of a performance which may be made under paragraph 1B of Schedule 2 without infringing the rights conferred by Chapter 2 of Part II (rights in performances), and

(b)publication right.]]

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Amendments (Textual)

F1Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)

F2S. 296ZEA inserted (1.10.2014) by The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 3(2) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

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