08 January 2012

Copyright: Forensic Telecommunications Services Ltd. v West Yorkshire Police

In Forensic Telecommunications Services Ltd v West Yorkshire Police and Another [2011] EWHC 2892 (Ch) (9 November 2011) the claimant company ("FTS") complained that the West Yorkshire Police and one of the force's former detective constables had infringed its copyright, alternatively its database right, in certain tables of data referred to as "the PM Abs Lists" and had misused information consisting of the data in those tables that was alleged to have been disclosed to them in confidence. In an 142 paragraph judgment that discussed every aspect of copyright and database law from TRIPS to the interpretation of EU directives, Mr Justice Arnold threw out the claim for copyright infringement on the ground that copyright did not subsist in "the PM Abs Lists" but allowed the claim for database right infringement and breach of confidence. In the last paragraph of his judgment, his lordship said:
 "I cannot part from this case without expressing my concern that it should have come this far. I fear that the costs will have been out of all proportion to what is at stake. That is regrettable in any litigation, but particularly so where public money is involved."
As an unfortunate council taxpayer of the defendant county I say amen to that.

Why the Copyright Claim Failed
The "PM Abs Lists" consisted of 
"a list of 33 pairs of PM Abs addresses covering 25 different Nokia models. Each address consists of eight alphanumeric digits, representing four bytes of binary data in hexadecimal notation. For example, for model 1100 the addresses are 017F0000 (start) and 01FFFFFF (end). In the case of model 6230 there are three pairs of addresses, one each for firmware revisions identified as 3.xx, 3.40 and 5.xx. In the case of some other models, such as 6510 and 7260, more than one pair of addresses is given, but without identifying the relevant firmware revisions."
Counsel for FTS submitted that copyright subsisted in the PM Abs List since 
(i)    it was a table, or alternatively a compilation, other than a database, 
(ii)   it was the author's intellectual creation and 
(iii)  the author satisfied the qualification requirements under the 1988 Act. 
Counsel for the defendants disputed points (i) and (ii), but not point (iii). In relation to point (i), he submitted that the PM Abs List was a database.

The judge noted that s.3A of the Copyright, Designs and Patents Act 1988 provides that a database is only original if, by reason of the selection and arrangement of its contents, the database is its author's own intellectual creation. By contrast, s.3 contains no corresponding provision in relation to a table or compilation other than a database. The "PM Abs List" were a collection of numerical data.   Although copyright did not subsist in the individual items of data his lordship held at paragraph [88] that the PM Abs List was a table which is a database, albeit a very simple one.   The PM Abs addresses in it were both systematically arranged and individually accessible, because the List was arranged into columns and rows. The first column listed the model number, the second column listed the start address and the third column listed the end address. Thus one could use the notional column headings and row labels as primitive indices or keys to retrieve a particular start or end address for a particular model of phone.  However,  counsel for FTS had conceded that, if the PM Abs List was a database, it was not protected by copyright since it was not the author's own intellectual creation by virtue of the selection and arrangement of its contents and in his lordship's judgment that concession had been rightly made.  The author had not selected the contents. They were acquired as a matter of happenstance over time.  The arrangement was the most obvious and basic one possible. The recitals to the Database Directive indicate that copyright in a database covers the structure of the database but the PM Abs List had no structure and therefore was not entitled to copyright protection.

Whether Copyright would have been infringed
Although unnecessary to his judgment, Mr Justice Arnold went on to consider whether copyright would have been infringed had it subsisted in the database and whether any of the defences to copyright infringement would have availed the police. His lordship decided both of those of those points against the boys and girls in blue. Similarities between the claimant's list and the defendants' raised a presumption of copying which the rozzers failed to rebut. Their arguable defence would have been fair dealing and the conditions for that defence had not been fulfilled.

Database Right
Having found that the "PM Abs List" was a database and that it had been reproduced by the defendants there was no serious defence to the claim for database right infringement.

Breach of Confidence
Like Judge Pelling QC in the Reggae Reggae sauce case, Mr. Justice Arnold referred to the well known formulation of the action for a breach of confidence in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 at 47:
"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must have been an unauthorised use of the information to the detriment of the party communicating it."
The judge held that the PM Abs List did have the necessary quality of confidence at the relevant date since it was valuable information collated by FTS through the exercise of skill, judgement and labour which was not in the public domain. Counsel for the coppers mounted an argument to the effect that the PM Abs List did not have the necessary quality of confidence because FTS had not taken sufficient steps to protect the confidentiality of the information. In his lordship's judgment that was immaterial, because this is not a case where FTS had to establish that the information had the status of a trade secret. The police were or should have been aware that that this information gave rise to an obligation of confidence and this obligation was breached when they made use of it.

Conclusion
Like all of Mr Justice Arnold's judgments this case is chock full of citable material and I have bookmarked it under "copyright", "database right" and "confidence" in my "skelly" file for that very reason. I have a lot of sympathy for the claimants over the subsistence of the copyright point.   Maybe the CJEU will throw developers in their position a bone when it hears Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2011] RPC 9, [2011] ECDR 9, [2010] EWCA Civ 1380.   In the meantime, anybody who wants to discuss this case or discuss copyrights, database rights or the law of confidence is welcome to call me on 0800 862 0055 or fill in my contact form.

1 comment:

Anonymous said...

I too am a West Yorkshire precept payer and object to West Yorkshire Police gambling with public money. At the conclusion of the trial Assistant Chief Constable Parkinson made a press announcement that would have made more sense if they had won the case:

The force insisted that it had been transparent throughout and had suggested to FTS that an independent review of the software systems should be conducted.

“Had they agreed to this in 2006,” Assistant Chief Constable John Parkinson said, “this matter may never have ended up in court.”

Mr Parkinson said the force was considering the implications of the court’s ruling. It had tried to resolve the matter without the expense of legal proceedings but it was necessary to challenge FTS’s claims.

The reality is that the Force, at Parkinson's behest, made not one but two separate Applications for summary dismissal claiming that Forensic Telecommunications case was 'without merit'.

Those type of gung-ho decisions by West Yorkshire Police, that are regularly characterised in court transcripts, are much easier to make when you are gambling with public funds.