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“Pausing on images of Lara Croft can assist copyright analysis as the Court of Appeal today clarifies how copyright cases involving computer games should be approached. Local authorities and console manufacturers will also need to review carefully their approach to enforcement in such cases."

"The Court of Appeal (Burnton LJ, Penry-Davey J and Sharpe J) has this morning given reasons for upholding the convictions of Christopher Gilham in Hereford Crown Court for numerous offences contrary to copyright and money-laundering legislation. Anthony Vines appeared on behalf of Worcestershire County Council.

 

The appellant had operated a retail business selling modchips for various game consoles.  In general terms, the modchips had the effect of fooling the consoles and enabling counterfeit game disks to be played.  Such devices are controlled by s.296ZB of the Copyright Designs and Patents Act 1988 (“the CDPA”) since they are “effective technological measures” which restrict or prohibit the unlawful copying of copyright works which, in the context of computer games, are digital graphics, images and sounds.

 

Following on from the approach of Jacob LJ in Higgs [2008] EWCA Crim 1324, which was another modchips prosecution which had concerned in part the copying of digital data comprising the copyright works in the Random Access Memory of each game console (“the RAM”), the principal issue raised by the Appellant was whether what occurred in RAM was in fact unlawful copying within the meaning of the CDPA.  The Appeal had been certified as fit for appeal by the trial judge following conviction and, pending the hearing of the appeal, various cases in the UK had been adjourned.

 

Lord Justice Burnton focused upon the fact that whilst a game represented a single copyright work, there were included within the game numerous copyright works such as drawings, sounds and the like.  As the Learned Judge stated in argument, at one time, for  example when the pause button on the console is pressed and a fixed image of Lara Croft is displayed on the monitor, that would constitute a substantial and infringing copy of that image for the purposes of the CDPA. This then became the basis of the decision.

 

This approach therefore enabled the Court to avoid having to decide the difficult legal issue of whether, where partial digital copies of a copyright work are overwritten in RAM because for example the whole may exceed the capacity of the RAM, the Court should conclude that such copying is infringing by virtue of the principle of data being exchanged “little and often”.  Of significance however was the fact that the learned Judge did say obiter dicta that if he had had to have based his judgment upon that issue, he would have adopted the “little and often” principle following the dicta of Jacob LJ in Higgs.

 

Notably, having apparently simplified the approach of prosecutors for trials of this complex area, Burnton LJ went on to advocate the use of the Chancery Division for the determination of difficult questions of copyright law before specialist judges highlighting the available weapons of injunctions and confiscation via Part 5 of the Proceeds of Crime Act 2002.”