May 2004
Spanish Court Leaves Computer Games Retailer Cheering Mod-Chip Chip Hooray
Spanish court has decided that a loophole in Spanish copyright law allows the sale of mod-chips for use in X-Box and Playstation 2 video game consoles. The unsuccessful action was brought against a Barcelona based computer games retailer, Innovgames, who had been offering to install mod-chips to its customers.
A mod-chip adapts the video game unit so that it is able to play games sold in different parts of the world. It also allows consoles to play copied games. As such, companies producing video games consoles have fought bitterly to prevent the mod-chips from being marketed in the belief that mod-chips facilitate software piracy.
The decision of the Spanish court comes on the back of the decision of an Italian court last December, which also allowed the sale of mod-chips. The matter has also been the subject of litigation in Australia where the court of first instance found that the supply of the chips was legal. This was later overruled on appeal, the court holding that although the chips themselves were legal, the supply of the chips was not.
Mr Justice Jacob in the case of Sony Computer Entertainment v. Paul Owen & Ors set out the position on mod-chips in the UK in January 2002. It was decided that mod-chips are illegal in the UK and cannot be used to allow users to play copied games. The decision was based on s296 of the Copyright Designs and Patents Act 1988, which states that the sale of devices used to circumvent measures designed to protect against copying is an offence.
BRIFFA Comment:
The Sony decision appears to determine the position on mod-chips in the UK. However, the UK decision was made before the UK implemented the EU Copyright through the Copyright and Related Rights which came into force on the 31st of October 2003. The directive had the purpose of harmonising the position on circumvention measure throughout the EU. Since the directive coming into force courts of first instance in both Italy and Spain have decided that mod-chips do not breach copyright law. As the UK law is supposed to be in line with the rest of the European Union, it will be interesting to see the result of any future case in the UK or, indeed, any appeal in Italy or Spain.