On 9 November 2009, the Court of Appeal of England and Wales upheld convictions in Worcester Crown Court against Christopher Gilham for a number of offences under Section 296ZB of the Copyright, Designs and Patents Act 1988 in relation to the sale and importation of modchips. These allow users to circumvent copy protection measures in order to play pirate video games on consoles like the Xbox, Playstation and Gamecube.

During the playing of a game, data is taken from the disk into the Random Access Memory (RAM) of the console. As the game is played, the data in the RAM is over-written by different data from the disk. The Court accepted that, at any one time, only a very small percentage of the data on the disk would be present in the RAM. The screen or monitor displays images of scenes, characters and objects that have been created by the designs of the games. The digital instructions for the display of those scenes, characters and objects and for the production of the sounds and music would be on the DVD and taken into the RAM temporarily to be over-written by other data on the DVD as the game moves on. The issue on appeal in R v Christopher Gilham [2009] EWCA Crim 2293 was whether the playing of a counterfeit DVD on a games console constituted copying of a substantial part of a copyright work.

COURT OF APPEAL DECISION

Substantial copying was the only issue on appeal and in this respect it was submitted that the judge had wrongly directed the jury as to the meaning of “substantial”. Burnton LJ dismissed the appeal and upheld the convictions. He agreed, however, that the application of the substantial part test was more complex than was indicated by the judge’s direction. Burnton LJ noted that the authorities, both judicial and academic, recognised the problem that arises when a defendant regularly takes a small amount of material from the claimant’s work: the “little and often” problem.

Burnton LJ held that in the current case, if the only copyright work that was copied was the game as a whole, the “little and often” would be material and the correctness of Laddie J’s judgment and of Jacob LJ’s dicta would have to be decided. However, the game as a whole was not the sole subject of copyright. The various drawings that resulted in the images shown on the television screen or monitor were themselves artistic works protected by copyright. The images shown on the screen were copies - and substantial copies at that - of those works. It followed that even if the contents of the RAM of the game console at any one time were not a substantial copy, the image displayed on screen was. It was irrelevant that a substantial copy of the copyright work could be seen only for an instant as Section 17(6) CDPA expressly provides that a transient copy is a copy. It followed that Mr Gilham had been rightly convicted.

Finally, it is noteworthy that Burnton LJ thought it appropriate to “repeat with emphasis” the point made by Jacob LJ in Higgs that difficult copyright issues, such as whether a copy is a substantial part of a copyright work, should be tried in the Chancery Division before specialist judges and not before a jury. The assumption being that an untrained jury may not be able to appreciate the complexity and subtlety of law in this area.