The Advanced Television Services (Industrial Property Rights) Regulations 1996

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision in respect of licensing industrial property rights to conditional access products and systems for digital television services. They implement in the United Kingdom Article 4(d) of Directive 95/47/EC of the European Parliament and of the Council on the use of standards for the transmission of television signals (“the Advanced Television Services Directive”), as it applies to the holders of such rights.

By regulation 3, the Regulations apply in relation to conditional access to digital television services broadcast to viewers in the Community, irrespective of the means of transmission. The Regulations thus apply whether the digital television services are transmitted by cable, satellite or terrestrial means.

Regulation 4(1) provides that the holders of such rights, when granting licences to manufacturers of consumer equipment, shall have the duty to license on fair, reasonable and non-discriminatory terms. Regulation 4(2) provides that, taking into account technical and commercial factors, such holders shall not subject the granting of licences to certain conditions. The conditions which are prohibited are those which prohibit, discourage or deter the inclusion of a common interface or of means specific to another conditional access system.

Paragraph (3) of regulation 4 provides that contravention of the duties provided for in paragraphs (1) and (2) shall be actionable in tort. Any person affected by a contravention of the duties may enforce them. A condition included in a licence in contravention of paragraph (2) shall be void.

Paragraphs (4) and (5) of regulation 4 provide that the court shall have certain powers, where an act or omission constitutes or might constitute an infringement of the relevant industrial property rights, but would not so constitute an infringement, if the holder had complied or were to comply with the duties imposed by paragraphs (1) and (2). Paragraph (4) provides that the infringer in such a situation shall have a defence, provided that he makes such payments to the holder in respect of past, present and future use of such rights, and abides by such other fair, reasonable or non-discriminatory terms, as the court may order. Paragraph (5) enables a person using such rights to apply to the court for a declaration or declarator of non-infringement.