Industrial property rights to conditional access products and systems
4.—(1) When granting licences to manufacturers of consumer equipment, holders of industrial property rights to conditional access products and systems shall have the duty (provided for in Article 4(d) of the Directive) to ensure that this is done on fair, reasonable and non-discriminatory terms.
(2) Without prejudice to the generality of paragraph (1) above, taking into account technical and commercial factors, holders of such rights shall have the duty not to subject the granting of licences to conditions prohibiting, deterring or discouraging the inclusion in the same product of —
(a)a common interface allowing connection with several other conditional access systems; or
(b)means specific to another conditional access system, provided that the licensee complies with the relevant and reasonable conditions ensuring, as far as he is concerned, the security of transactions of conditional access system operators.
(3) The duties referred to in paragraphs (1) and (2) above are duties owed to any person who may be affected by a contravention of them, and without prejudice to any other cause of action which may arise therefrom —
(a)any breach of those duties which causes that person to sustain loss or damage shall be actionable in tort at the suit or instance of that person; and
(b)any condition included in a licence in contravention of the duty referred to in paragraph (2) above shall be void.
(4) In any proceedings in respect of the infringement of any industrial property rights to which the duties referred to in paragraphs (1) and (2) above relate, it shall be a defence for the defendant —
(a)to show that the infringement consisted only in acts or omissions which would not have constituted an infringement if the holder of such rights had complied with those duties; and
(b)to undertake to make such payments to the holder of such rights (in respect of both past, present and future use) and to abide by such other fair, reasonable and non-discriminatory terms as the court may order.
(5) Without prejudice to the court’s jurisdiction to make a declaration or declarator apart from this paragraph, a declaration or declarator that an act or omission would not, or a proposed act or omission would not, constitute an infringement of any industrial property rights if the holder of such rights had complied or were to comply with the duties referred to in paragraphs (1) and (2) above, may be made by the court in proceedings between the person doing or proposing to do the act or making or proposing to make the omission and the holder of such rights, notwithstanding that no assertion to the contrary has been made by the holder, if it is shown —
(a)that the person has applied in writing to the holder for a written acknowledgement to the effect of the declaration or declarator claimed, and has furnished him with full particulars in writing of the act in question; and
(b)that the holder has refused or failed to give any such acknowledgement.