Copyright,
etc. and Trade Marks (Offences and Enforcement)
Act 2002
2002
Chapter 25
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An Act to amend the
Copyright, Designs and Patents Act 1988 in respect
of criminal offences, search warrants, powers of
seizure and orders for forfeiture; to amend the
Trade Marks Act 1994 in respect of search warrants
and powers of seizure; and for connected purposes.
[24th July
2002]
BE IT
ENACTED by the Queen's most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority
of the same, as follows:-
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Amendment of the Copyright, Designs and Patents
Act 1988 |
1 |
Penalties
for criminal offences
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(1)
The Copyright, Designs and Patents Act 1988 (c.
48) (in this Act referred to as the "1988
Act") is amended as follows.
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(2)
In section 107(4)(b) (criminal liability for
making or dealing with infringing articles, etc.),
for "two" substitute "ten".
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(3)
In section 198(5)(b) (criminal liability for
making, dealing with or using illicit recordings),
for "two" substitute "ten".
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(4)
In section 297A(2) (criminal liability in relation
to unauthorised decoders)-
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(a) for paragraph (a)
substitute-
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"(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
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(b) in paragraph (b), for
"two" substitute "ten".
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(5)
This section does not have effect in relation to
any offence committed before the commencement of
this section.
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2 |
Search
warrants
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(1)
The 1988 Act is amended as follows.
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(2)
In section 109 (search warrants: infringing
articles, etc.)-
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(a) in subsection (1)(a),
for "107(1)(a), (b), (d)(iv) or (e)"
substitute "107(1) or (2)";
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(b) in subsection (4),
after "107(1)" insert "or
(2)"; and
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(c) in subsection (5),
after "buildings," insert "fixed
or".
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(3)
In section 200 (search warrants: illicit
recordings)-
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(a) in subsection (1)(a)-
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(i) for "198(1)(a),
(b) or (d)(iii)" substitute
"198(1)"; and
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(ii) after
"importing" insert ",
possessing, selling etc."; and
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(b) after subsection (3)
insert-
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"(3A)
In executing a warrant issued under
subsection (1) a constable may seize an
article if he reasonably believes that it
is evidence that any offence under section
198(1) has been or is about to be
committed.".
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(4)
After section 297A insert-
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"297B |
Search
warrants
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(1)
Where a justice of the peace (in Scotland,
a sheriff or justice of the peace) is
satisfied by information on oath given by
a constable (in Scotland, by evidence on
oath) that there are reasonable grounds
for believing-
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(a) that an
offence under section 297A(1) has been
or is about to be committed in any
premises, and
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(b) that evidence
that such an offence has been or is
about to be committed is in those
premises,
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he
may issue a warrant authorising a
constable to enter and search the
premises, using such reasonable force as
is necessary.
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(2)
The power conferred by subsection (1) does
not, in England and Wales, extend to
authorising a search for material of the
kinds mentioned in section 9(2) of the
Police and Criminal Evidence Act 1984 (c.
60) (certain classes of personal or
confidential material).
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(3)
A warrant under subsection (1)-
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(a) may authorise
persons to accompany any constable
executing the warrant, and
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(b) remains in
force for 28 days from the date of its
issue.
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(4)
In executing a warrant issued under
subsection (1) a constable may seize an
article if he reasonably believes that it
is evidence that any offence under section
297A(1) has been or is about to be
committed.
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(5)
In this section "premises"
includes land, buildings, fixed or
moveable structures, vehicles, vessels,
aircraft and hovercraft.".
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3 |
Forfeiture:
infringing copies, etc.
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After
section 114 of the 1988 Act (order as to disposal
of infringing copy or other article) insert-
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"114A |
Forfeiture
of infringing copies, etc.: England and
Wales or Northern Ireland
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(1)
In England and Wales or Northern Ireland
where there have come into the possession
of any person in connection with the
investigation or prosecution of a relevant
offence-
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(a) infringing
copies of a copyright work, or
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(b) articles
specifically designed or adapted for
making copies of a particular copyright
work,
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that
person may apply under this section for an
order for the forfeiture of the infringing
copies or articles.
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(2)
For the purposes of this section
"relevant offence" means-
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(a) an offence
under section 107(1) or (2) (criminal
liability for making or dealing with
infringing articles, etc.),
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(b) an offence
under the Trade Descriptions Act 1968
(c. 29), or
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(c) an offence
involving dishonesty or deception.
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(3)
An application under this section may be
made-
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(a) where
proceedings have been brought in any
court for a relevant offence relating to
some or all of the infringing copies or
articles, to that court, or
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(b) where no
application for the forfeiture of the
infringing copies or articles has been
made under paragraph (a), by way of
complaint to a magistrates' court.
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(4)
On an application under this section, the
court shall make an order for the
forfeiture of any infringing copies or
articles only if it is satisfied that a
relevant offence has been committed in
relation to the infringing copies or
articles.
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(5)
A court may infer for the purposes of this
section that such an offence has been
committed in relation to any infringing
copies or articles if it is satisfied that
such an offence has been committed in
relation to infringing copies or articles
which are representative of the infringing
copies or articles in question (whether by
reason of being of the same design or part
of the same consignment or batch or
otherwise).
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(6)
Any person aggrieved by an order made
under this section by a magistrates'
court, or by a decision of such a court
not to make such an order, may appeal
against that order or decision-
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(a) in England and
Wales, to the Crown Court, or
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(b) in Northern
Ireland, to the county court.
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(7)
An order under this section may contain
such provision as appears to the court to
be appropriate for delaying the coming
into force of the order pending the making
and determination of any appeal (including
any application under section 111 of the
Magistrates' Courts Act 1980 (c. 43) or
Article 146 of the Magistrates' Courts
(Northern Ireland) Order 1981 (S.I.
1981/1675 (N.I. 26)) (statement of case)).
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(8)
Subject to subsection (9), where any
infringing copies or articles are
forfeited under this section they shall be
destroyed in accordance with such
directions as the court may give.
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(9)
On making an order under this section the
court may direct that the infringing
copies or articles to which the order
relates shall (instead of being destroyed)
be forfeited to the owner of the copyright
in question or dealt with in such other
way as the court considers appropriate.
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114B |
Forfeiture
of infringing copies, etc.: Scotland
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(1)
In Scotland the court may make an order
under this section for the forfeiture of
any-
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(a) infringing
copies of a copyright work, or
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(b) articles
specifically designed or adapted for
making copies of a particular copyright
work.
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(2)
An order under this section may be made-
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(a) on an
application by the procurator-fiscal
made in the manner specified in section
134 of the Criminal Procedure (Scotland)
Act 1995 (c. 46), or
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(b) where a person
is convicted of a relevant offence, in
addition to any other penalty which the
court may impose.
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(3)
On an application under subsection (2)(a),
the court shall make an order for the
forfeiture of any infringing copies or
articles only if it is satisfied that a
relevant offence has been committed in
relation to the infringing copies or
articles.
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(4)
The court may infer for the purposes of
this section that such an offence has been
committed in relation to any infringing
copies or articles if it is satisfied that
such an offence has been committed in
relation to infringing copies or articles
which are representative of the infringing
copies or articles in question (whether by
reason of being of the same design or part
of the same consignment or batch or
otherwise).
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(5)
The procurator-fiscal making the
application under subsection (2)(a) shall
serve on any person appearing to him to be
the owner of, or otherwise to have an
interest in, the infringing copies or
articles to which the application relates
a copy of the application, together with a
notice giving him the opportunity to
appear at the hearing of the application
to show cause why the infringing copies or
articles should not be forfeited.
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(6)
Service under subsection (5) shall be
carried out, and such service may be
proved, in the manner specified for
citation of an accused in summary
proceedings under the Criminal Procedure
(Scotland) Act 1995.
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(7)
Any person upon whom notice is served
under subsection (5) and any other person
claiming to be the owner of, or otherwise
to have an interest in, infringing copies
or articles to which an application under
this section relates shall be entitled to
appear at the hearing of the application
to show cause why the infringing copies or
articles should not be forfeited.
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(8)
The court shall not make an order
following an application under subsection
(2)(a)-
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(a) if any person
on whom notice is served under
subsection (5) does not appear, unless
service of the notice on that person is
proved, or
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(b) if no notice
under subsection (5) has been served,
unless the court is satisfied that in
the circumstances it was reasonable not
to serve such notice.
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(9)
Where an order for the forfeiture of any
infringing copies or articles is made
following an application under subsection
(2)(a), any person who appeared, or was
entitled to appear, to show cause why
infringing copies or articles should not
be forfeited may, within 21 days of the
making of the order, appeal to the High
Court by Bill of Suspension.
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(10)
Section 182(5)(a) to (e) of the Criminal
Procedure (Scotland) Act 1995 (c. 46)
shall apply to an appeal under subsection
(9) as it applies to a stated case under
Part 2 of that Act.
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(11)
An order following an application under
subsection (2)(a) shall not take effect-
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(a) until the end
of the period of 21 days beginning with
the day after the day on which the order
is made, or
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(b) if an appeal
is made under subsection (9) above
within that period, until the appeal is
determined or abandoned.
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(12)
An order under subsection (2)(b) shall not
take effect-
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(a) until the end
of the period within which an appeal
against the order could be brought under
the Criminal Procedure (Scotland) Act
1995, or
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(b) if an appeal
is made within that period, until the
appeal is determined or abandoned.
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(13)
Subject to subsection (14), infringing
copies or articles forfeited under this
section shall be destroyed in accordance
with such directions as the court may
give.
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(14)
On making an order under this section the
court may direct that the infringing
copies or articles to which the order
relates shall (instead of being destroyed)
be forfeited to the owner of the copyright
in question or dealt with in such other
way as the court considers appropriate.
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(15)
For the purposes of this section-
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"relevant
offence" means an offence under
section 107(1) or (2) (criminal
liability for making or dealing with
infringing articles, etc.), or under the
Trade Descriptions Act 1968 (c. 29) or
any offence involving dishonesty or
deception;
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(a) in relation
to an order made on an application
under subsection (2)(a), the sheriff,
and
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(b) in relation
to an order made under subsection
(2)(b), the court which imposed the
penalty.".
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4 |
Forfeiture:
illicit recordings
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After
section 204 of the 1988 Act (order as to disposal
of illicit recording) insert-
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"204A |
Forfeiture
of illicit recordings: England and Wales
or Northern Ireland
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(1)
In England and Wales or Northern Ireland
where illicit recordings of a performance
have come into the possession of any
person in connection with the
investigation or prosecution of a relevant
offence, that person may apply under this
section for an order for the forfeiture of
the illicit recordings.
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(2)
For the purposes of this section
"relevant offence" means-
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(a) an offence
under section 198(1) (criminal liability
for making or dealing with illicit
recordings),
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(b) an offence
under the Trade Descriptions Act 1968
(c. 29), or
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(c) an offence
involving dishonesty or deception.
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(3)
An application under this section may be
made-
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(a) where
proceedings have been brought in any
court for a relevant offence relating to
some or all of the illicit recordings,
to that court, or
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(b) where no
application for the forfeiture of the
illicit recordings has been made under
paragraph (a), by way of complaint to a
magistrates' court.
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(4)
On an application under this section, the
court shall make an order for the
forfeiture of any illicit recordings only
if it is satisfied that a relevant offence
has been committed in relation to the
illicit recordings.
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(5)
A court may infer for the purposes of this
section that such an offence has been
committed in relation to any illicit
recordings if it is satisfied that such an
offence has been committed in relation to
illicit recordings which are
representative of the illicit recordings
in question (whether by reason of being
part of the same consignment or batch or
otherwise).
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(6)
Any person aggrieved by an order made
under this section by a magistrates'
court, or by a decision of such a court
not to make such an order, may appeal
against that order or decision-
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(a) in England and
Wales, to the Crown Court, or
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(b) in Northern
Ireland, to the county court.
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(7)
An order under this section may contain
such provision as appears to the court to
be appropriate for delaying the coming
into force of the order pending the making
and determination of any appeal (including
any application under section 111 of the
Magistrates' Courts Act 1980 (c. 43) or
Article 146 of the Magistrates' Courts
(Northern Ireland) Order 1981 (S.I.
1987/1675 (N.I. 26)) (statement of case)).
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(8)
Subject to subsection (9), where any
illicit recordings are forfeited under
this section they shall be destroyed in
accordance with such directions as the
court may give.
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(9)
On making an order under this section the
court may direct that the illicit
recordings to which the order relates
shall (instead of being destroyed) be
forfeited to the person having the
performers' rights or recording rights in
question or dealt with in such other way
as the court considers appropriate.
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204B |
Forfeiture:
Scotland
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(1)
In Scotland the court may make an order
under this section for the forfeiture of
any illicit recordings.
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(2)
An order under this section may be made-
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(a) on an
application by the procurator-fiscal
made in the manner specified in section
134 of the Criminal Procedure (Scotland)
Act 1995 (c. 46), or
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(b) where a person
is convicted of a relevant offence, in
addition to any other penalty which the
court may impose.
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(3)
On an application under subsection (2)(a),
the court shall make an order for the
forfeiture of any illicit recordings only
if it is satisfied that a relevant offence
has been committed in relation to the
illicit recordings.
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(4)
The court may infer for the purposes of
this section that such an offence has been
committed in relation to any illicit
recordings if it is satisfied that such an
offence has been committed in relation to
illicit recordings which are
representative of the illicit recordings
in question (whether by reason of being
part of the same consignment or batch or
otherwise).
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(5)
The procurator-fiscal making the
application under subsection (2)(a) shall
serve on any person appearing to him to be
the owner of, or otherwise to have an
interest in, the illicit recordings to
which the application relates a copy of
the application, together with a notice
giving him the opportunity to appear at
the hearing of the application to show
cause why the illicit recordings should
not be forfeited.
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(6)
Service under subsection (5) shall be
carried out, and such service may be
proved, in the manner specified for
citation of an accused in summary
proceedings under the Criminal Procedure
(Scotland) Act 1995.
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(7)
Any person upon whom notice is served
under subsection (5) and any other person
claiming to be the owner of, or otherwise
to have an interest in, illicit recordings
to which an application under this section
relates shall be entitled to appear at the
hearing of the application to show cause
why the illicit recordings should not be
forfeited.
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(8)
The court shall not make an order
following an application under subsection
(2)(a)-
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(a) if any person
on whom notice is served under
subsection (5) does not appear, unless
service of the notice on that person is
proved, or
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(b) if no notice
under subsection (5) has been served,
unless the court is satisfied that in
the circumstances it was reasonable not
to serve such notice.
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(9)
Where an order for the forfeiture of any
illicit recordings is made following an
application under subsection (2)(a), any
person who appeared, or was entitled to
appear, to show cause why the illicit
recordings should not be forfeited may,
within 21 days of the making of the order,
appeal to the High Court by Bill of
Suspension.
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(10)
Section 182(5)(a) to (e) of the Criminal
Procedure (Scotland) Act 1995 shall apply
to an appeal under subsection (9) as it
applies to a stated case under Part 2 of
that Act.
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(11)
An order following an application under
subsection (2)(a) shall not take effect-
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(a) until the end
of the period of 21 days beginning with
the day after the day on which the order
is made, or
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(b) if an appeal
is made under subsection (9) above
within that period, until the appeal is
determined or abandoned.
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(12)
An order under subsection (2)(b) shall not
take effect-
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(a) until the end
of the period within which an appeal
against the order could be brought under
the Criminal Procedure (Scotland) Act
1995 (c. 46), or
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(b) if an appeal
is made within that period, until the
appeal is determined or abandoned.
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(13)
Subject to subsection (14), illicit
recordings forfeited under this section
shall be destroyed in accordance with such
directions as the court may give.
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(14)
On making an order under this section the
court may direct that the illicit
recordings to which the order relates
shall (instead of being destroyed) be
forfeited to the person having the
performers' rights or recording rights in
question or dealt with in such other way
as the court considers appropriate.
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(15)
For the purposes of this section-
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"relevant
offence" means an offence under
section 198(1) (criminal liability for
making or dealing with illicit
recordings), or under the Trade
Descriptions Act 1968 (c. 29) or any
offence involving dishonesty or
deception;
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(a) in relation
to an order made on an application
under subsection (2)(a), the sheriff,
and
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(b) in relation
to an order made under subsection
(2)(b), the court which imposed the
penalty.".
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5 |
Forfeiture:
unauthorised decoders
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After
section 297B of the 1988 Act (which is inserted by
section 2 of this Act) insert-
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"297C |
Forfeiture
of unauthorised decoders: England and
Wales or Northern Ireland
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(1)
In England and Wales or Northern Ireland
where unauthorised decoders have come into
the possession of any person in connection
with the investigation or prosecution of a
relevant offence, that person may apply
under this section for an order for the
forfeiture of the unauthorised decoders.
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(2)
For the purposes of this section
"relevant offence" means-
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(a) an offence
under section 297A(1) (criminal
liability for making, importing, etc.
unauthorised decoders),
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(b) an offence
under the Trade Descriptions Act 1968,
or
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(c) an offence
involving dishonesty or deception.
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(3)
An application under this section may be
made-
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(a) where
proceedings have been brought in any
court for a relevant offence relating to
some or all of the unauthorised
decoders, to that court, or
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(b) where no
application for the forfeiture of the
unauthorised decoders has been made
under paragraph (a), by way of complaint
to a magistrates' court.
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(4)
On an application under this section, the
court shall make an order for the
forfeiture of any unauthorised decoders
only if it is satisfied that a relevant
offence has been committed in relation to
the unauthorised decoders.
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(5)
A court may infer for the purposes of this
section that such an offence has been
committed in relation to any unauthorised
decoders if it is satisfied that such an
offence has been committed in relation to
unauthorised decoders which are
representative of the unauthorised
decoders in question (whether by reason of
being of the same design or part of the
same consignment or batch or otherwise).
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(6)
Any person aggrieved by an order made
under this section by a magistrates'
court, or by a decision of such a court
not to make such an order, may appeal
against that order or decision-
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(a) in England and
Wales, to the Crown Court, or
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(b) in Northern
Ireland, to the county court.
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(7)
An order under this section may contain
such provision as appears to the court to
be appropriate for delaying the coming
into force of the order pending the making
and determination of any appeal (including
any application under section 111 of the
Magistrates' Courts Act 1980 (c. 43) or
Article 146 of the Magistrates' Courts
(Northern Ireland) Order 1981 (S.I.
1981/1675 (N.I. 26)) (statement of case)).
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(8)
Subject to subsection (9), where any
unauthorised decoders are forfeited under
this section they shall be destroyed in
accordance with such directions as the
court may give.
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(9)
On making an order under this section the
court may direct that the unauthorised
decoders to which the order relates shall
(instead of being destroyed) be forfeited
to a person who has rights or remedies
under section 298 in relation to the
unauthorised decoders in question, or
dealt with in such other way as the court
considers appropriate.
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297D |
Forfeiture
of unauthorised decoders: Scotland
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(1)
In Scotland the court may make an order
under this section for the forfeiture of
unauthorised decoders.
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(2)
An order under this section may be made-
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(a) on an
application by the procurator-fiscal
made in the manner specified in section
134 of the Criminal Procedure (Scotland)
Act 1995 (c. 46), or
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(b) where a person
is convicted of a relevant offence, in
addition to any other penalty which the
court may impose.
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(3)
On an application under subsection (2)(a),
the court shall make an order for the
forfeiture of any unauthorised decoders
only if it is satisfied that a relevant
offence has been committed in relation to
the unauthorised decoders.
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(4)
The court may infer for the purposes of
this section that such an offence has been
committed in relation to any unauthorised
decoders if it is satisfied that such an
offence has been committed in relation to
unauthorised decoders which are
representative of the unauthorised
decoders in question (whether by reason of
being of the same design or part of the
same consignment or batch or otherwise).
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(5)
The procurator-fiscal making the
application under subsection (2)(a) shall
serve on any person appearing to him to be
the owner of, or otherwise to have an
interest in, the unauthorised decoders to
which the application relates a copy of
the application, together with a notice
giving him the opportunity to appear at
the hearing of the application to show
cause why the unauthorised decoders should
not be forfeited.
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(6)
Service under subsection (5) shall be
carried out, and such service may be
proved, in the manner specified for
citation of an accused in summary
proceedings under the Criminal Procedure
(Scotland) Act 1995 (c. 46).
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(7)
Any person upon whom notice is served
under subsection (5) and any other person
claiming to be the owner of, or otherwise
to have an interest in, unauthorised
decoders to which an application under
this section relates shall be entitled to
appear at the hearing of the application
to show cause why the unauthorised
decoders should not be forfeited.
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(8)
The court shall not make an order
following an application under subsection
(2)(a)-
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(a) if any person
on whom notice is served under
subsection (5) does not appear, unless
service of the notice on that person is
proved, or
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(b) if no notice
under subsection (5) has been served,
unless the court is satisfied that in
the circumstances it was reasonable not
to serve such notice.
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(9)
Where an order for the forfeiture of any
unauthorised decoders is made following an
application under subsection (2)(a), any
person who appeared, or was entitled to
appear, to show cause why the unauthorised
decoders should not be forfeited may,
within 21 days of the making of the order,
appeal to the High Court by Bill of
Suspension.
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(10)
Section 182(5)(a) to (e) of the Criminal
Procedure (Scotland) Act 1995 shall apply
to an appeal under subsection (9) as it
applies to a stated case under Part 2 of
that Act.
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(11)
An order following an application under
subsection (2)(a) shall not take effect-
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(a) until the end
of the period of 21 days beginning with
the day after the day on which the order
is made, or
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(b) if an appeal
is made under subsection (9) above
within that period, until the appeal is
determined or abandoned.
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(12)
An order under subsection (2)(b) shall not
take effect-
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(a) until the end
of the period within which an appeal
against the order could be brought under
the Criminal Procedure (Scotland) Act
1995 (c. 46), or
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(b) if an appeal
is made within that period, until the
appeal is determined or abandoned.
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(13)
Subject to subsection (14), where any
unauthorised decoders are forfeited under
this section they shall be destroyed in
accordance with such directions as the
court may give.
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(14)
On making an order under this section the
court may direct that the unauthorised
decoders to which the order relates shall
(instead of being destroyed) be forfeited
to a person who has rights or remedies
under section 298 in relation to the
unauthorised decoders in question, or
dealt with in such other way as the court
considers appropriate.
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(15)
For the purposes of this section-
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"relevant
offence" means an offence under
section 297A(1) (criminal liability for
making, importing, etc. unauthorised
decoders), or under the Trade
Descriptions Act 1968 (c. 29) or any
offence involving dishonesty or
deception;
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(a) in relation
to an order made on an application
under subsection (2)(a), the sheriff,
and
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(b) in relation
to an order made under subsection
(2)(b), the court which imposed the
penalty.".
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Amendment of the Trade Marks Act 1994 |
6 |
Search
warrants
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After
section 92 of the Trade Marks Act 1994 (c. 26)
insert-
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"92A |
Search
warrants
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(1)
Where a justice of the peace (in Scotland,
a sheriff or justice of the peace) is
satisfied by information on oath given by
a constable (in Scotland, by evidence on
oath) that there are reasonable grounds
for believing-
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(a) that an
offence under section 92 (unauthorised
use of trade mark, etc. in relation to
goods) has been or is about to be
committed in any premises, and
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(b) that evidence
that such an offence has been or is
about to be committed is in those
premises,
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he
may issue a warrant authorising a
constable to enter and search the
premises, using such reasonable force as
is necessary.
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(2)
The power conferred by subsection (1) does
not, in England and Wales, extend to
authorising a search for material of the
kinds mentioned in section 9(2) of the
Police and Criminal Evidence Act 1984 (c.
60) (certain classes of personal or
confidential material).
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(3)
A warrant under subsection (1)-
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(a) may authorise
persons to accompany any constable
executing the warrant, and
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(b) remains in
force for 28 days from the date of its
issue.
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(4)
In executing a warrant issued under
subsection (1) a constable may seize an
article if he reasonably believes that it
is evidence that any offence under section
92 has been or is about to be committed.
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(5)
In this section "premises"
includes land, buildings, fixed or
moveable structures, vehicles, vessels,
aircraft and hovercraft.".
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Miscellaneous |
7 |
Short
title, commencement and extent
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(1)
This Act may be cited as the Copyright, etc. and
Trade Marks (Offences and Enforcement) Act 2002.
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(2)
This Act (apart from this section) shall come into
force on such day as the Secretary of State may by
order made by statutory instrument appoint, and
different days may be appointed for different
purposes.
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(3)
An order under subsection (2) may contain
transitional provisions and savings relating to
the provisions being brought into force by the
order.
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(4)
This Act extends to Northern Ireland.
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(5)
Section 6 and this section also extend to the Isle
of Man. |
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