The European Copyright Directive, imported into UK law by Sections 296ZA-ZF of the Copyright, Designs and Patents Act 1988 (CDPA), creates a number of offences in relation to circumventing technological measures designed to prevent infringement of copyright.

"Modchips" are devices which, if installed in a computer games console, allow the user of the console to play unauthorised copies of commercially published games, as well as allowing the user to play "homebrew" games. These devices operate by circumventing the hardware and software present on the games console that prevent the console from loading information from disks unless that disk is "unlocked" by the existence of a specific electronic code. This code is typically embedded in a normally unreachable area of the disc.

The recent Court of Appeal case, Gilham v R, demonstrates how the Court interprets the anti-circumvention laws, as well as clarifying that the presence of copyright material on the Random Access Memory (RAM) (which typically occurs in most, if not all, computer games consoles) can constitute a breach of copyright, notwithstanding the transient nature of the copy.

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There are two tests that must be met in order for an offence to be committed under CDPA. There must be an infringement of copyright in a work protected by a technological measure and that infringement must have been made possible by the device used to circumvent the technological measure used to protect that work.

In order for a breach of copyright to be established, the copy of the protected work must be substantial. This does not necessarily mean that "little and often" copying cannot constitute a breach. The Court has previously ruled, and Section 17 of the CDPA states, that transient images of a work can constitute a substantial copy.

The difficulty for a copyright holder is that proving this is extremely difficult. Modern RAM can shift up to 12,800 megabytes per second, meaning that the equivalent of around 7,050 DVDs could theoretically be transferred to RAM and then overwritten in one minute. The actual transfer rate is typically much less however, with certain aspects of running programs remaining in RAM for long periods of time.

In Gilham, the Court of Appeal held that the appearance of images generated by RAM on a screen could be sufficient to prove that substantial copying of a work had taken place and hence that a breach of copyright had occurred. Reference was made to the popular computer game character, Lara Croft. In actual fact, Lara is a collection of ever-changing ones and zeroes in a computer's memory, parts of which are copied from the computer game disc and parts of which are processed by the console. For the observer, however, Lara is plain to see on the TV screen. The design of Lara is protected by copyright, her appearance on screen would be enough to show substantial copying and therefore copyright in her image would be infringed.

The copying in this case was made possible by the installation of the modchip – and therefore selling the modchip constituted an offence under CDPA.

Conclusion

The Gilham case demonstrates the two-step test in practice. It reinforces that for an offence to be committed i) infringement of copyright in a work must be established and ii) that infringement must have been made possible by the use of a device to circumvent technological measures designed to prevent infringement of that work. In other words, if there is no substantial copying of a copyright work, made possible by a modchip, then the fact that that modchip defeats the so-called "copyright prevention mechanism" would be irrelevant.

In addition, the Court's finding that displaying a copyright image on screen from information held on RAM could constitute copyright infringement will be a welcome decision for developers and other rights holders.

Copyright and the anti-circumvention provisions remain complex and difficult to interpret. If you are in doubt as to your liabilities or rights, please get in touch.