In a decision earlier this month, the High Court held that a table of data produced by Forensic Telecommunications Services Ltd concerning "permanent memory absolute" addresses (known as "PM Abs" addresses) for mobile phones was protected by database right, which had been infringed by West Yorkshire Police. Further, the table was confidential and had been misused. However, copyright did not subsist in the individual addresses or in the table, as there was insufficient skill and labour expended and the selection or arrangement of the contents of the table did not constitute the author's own intellectual creation.
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Forensic Telecommunications Services Ltd ("FTS")
brought claims against West Yorkshire Police ("WYP") and
Mr Hirst, a detective employed by WYP, for infringement of
copyright and database right and misuse of confidential information
concerning a table of address data, referred to as the "PM
Abs" addresses.
The PM Abs addresses were needed to carry out physical extraction
of data from the memory of Nokia mobile phones, where data deleted
by the user is stored until it is overwritten. The addresses,
consisting of two numbers representing start and end points, define
the part of the memory where data is stored and vary as between
models of phone. Nokia does not publish its PM Abs addresses, but
it is possible to identify the addresses using two methods: trial
and error, which is time consuming, or use of a "flasher"
tool which effectively erases all old data held in the memory, and
whilst doing so, displays the address information.
FTS was set up to recover evidence from mobile phones and it
developed related software which made the task easier. As Nokia
mobile phones were received for examination, FTS ascertained PM Abs
addresses for a considerable number of models and compiled lists of
those addresses which were included in its software manuals.
The software was licensed to the security services but not to UK
police forces. FTS agreed in June 2006 to extract and translate
data from various mobile phones for WYP using the software to
assist on a counter terrorism investigation. Mr Hirst of WYP worked
with a member of the security services to examine the phones and
said that he was given a list of three or four PM Abs addresses. He
subsequently posted a list of 39 pairs of PM Abs addresses on a
website intended to act as an exchange for people who were
interested in phone forensics, which gave rise to these
proceedings.
Decision
Arnold J found that copyright did not subsist in the PM Abs
addresses or in the table of addresses. If copyright had been found
to subsist, WYP would have infringed that copyright. Database right
on the other hand, did subsist and had been infringed by WYP and
further there was a breach of confidential information.
Copyright in the individual addresses
In referring to his own decision in SAS Institute Inc v World
Programming Ltd [2010] EWHC 1829, Arnold J reminded
the court that copyright protects the skill, judgement and labour
in devising the form of expression of a literary work and not in
devising ideas and procedures. He found in this case that FTS's
key employee, Mr Bradford, who had ascertained the majority of the
PM Abs addresses using the "trial and error" method, had
not used skill, judgement and labour in devising the form of
expression of the individual addresses. Arnold J also referred to
the ECJ's judgment in Infopaq, Case C-5/08 where it
was said that copyright subsists only in subject matter which is
the expression of the intellectual creation of the author, which
was not the case here. If the addresses could be said to be
intellectual creations at all, they were Nokia's intellectual
creations.
Copyright in a database or other collection
Arnold J then considered whether copyright could subsist in the
collection of addresses. He decided that the table of addresses was
a database (albeit a simple one) as the addresses were
systematically arranged into columns and rows and were
"individually accessible" as required under the Database
Directive. There was some argument that data set out in a simple
tabulation could not be "individually accessible" but
this was rejected.
However, as a database, the table was not protected by copyright as
the selection and arrangement were not Mr Bradford's
intellectual creation (a requirement under the Database Directive)
if copyright protection is to be available for a database). There
was no structure in the table to merit copyright protection.
Arnold J considered, obiter, whether the table could be protected
by copyright even if it were not a database. He distinguished other
cases concerning literary and musical works which required the
exercise of sophisticated judgement, as well as other types of
skill and labour. By contrast, this case was concerned only with a
collection of numerical data, which was not planned to an overall
design but was simply a set of numbers acquired over time placed
into an obvious and basic form. No exercise of judgment had been
made and FTS had not devised the form of expression to any material
extent.
If this conclusion were wrong, Arnold J was of the view that
copyright infringement would have occurred as a substantial amount
of the work had been reproduced, measured both quantitatively and
qualitatively. Further there was no "fair dealing for
research" defence available to WYP. While "close to the
line," WYP's activities did not amount to scientific
research, and although their use was non commercial, it could not
be said to be "fair dealing". Also, there could be no
"innocence" defence to a damages claim.
Database right
Article 7 of the Database Directive provides for the sui
generis right, namely a 'right for the maker of a database
which shows that there has been a qualitatively and/or
quantitatively a substantial investment in either the obtaining,
verification or presentation of the contents to prevent extraction
and/or re-utilisation of the whole or of a substantial part,
evaluated qualitatively and/or quantitatively, of the contents of
that database'.
Although the skill, judgement and labour expended by Mr Bradford
was not the right kind to attract copyright, Arnold J ruled that
there was substantial investment on his part in obtaining the data,
particularly by the "trial and error" method, and there
was also evidence of verification by FTS. Infringement occurred as
Mr Hirst had extracted and reutilised a substantial part of the
contents of the database, on both a qualitative and quantitative
basis.
Breach of confidence
Arnold J ruled that the table did have the necessary quality of
confidence. The information was valuable, and not in the public
domain and FTS had emphasised when licensing to the security
services that the product was confidential to FTS. Mr Hirst knew
that FTS was a commercial supplier of forensic services and that
the software was licensed to the security service but not to WYP. A
reasonable person would have appreciated that the information was
confidential. Posting the information on the website and copying
for WYP's use constituted clear misuse.
Comment
This is an interesting case, particularly concerning database
right. It will be a relief to database right owners to see that
Arnold J applied protection to the significant investment in data
which was not held electronically or arranged in a complex way, but
appeared in simple tabular form. Arnold J noted that while no
defence had been argued based on WYP's status as a law
enforcement agency, it was regrettable that the case had progressed
so far as to have expended considerable public funds.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 30/11/2011.