Out-Law News | 17 Nov 2009 | 10:12 am | 3 min. read
Christopher Paul Gilham sold the devices, called mod chips because they modify a console, to people who were able to use them to play unlicensed copies of video games.
The Copyright, Designs and Patents Act (CDPA) makes it an offence to sell or distribute "any device, product or component which is primarily designed, produce, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures".
Gilham sold mod chips via a website and the Court of Appeal had to decide whether or not those devices made it possible for others to commit a copyright infringement. That would only be true if their playing of pirated games copied "a substantial part" of the work.
Gilham argued that only a small portion of a game is copied from a disc into a games console's memory at any one time, and that the amount copied at any given moment was far less than a "substantial part".
There are cases in which it has been argued that copying a 'little and often' is infringement. But those cases are inconsistent, the Court said. In one involving football broadcasting and foreign-registered decoder cards, the High Court said that only a small part of a match was held on the machine and any one time and a broadcast's copyright could not be considered on a cumulative basis.
In another case, though, the judge ruled that 'transient' copying is still copying and is still covered by the law.
Lord Justice Stanley Burton, though, said that the mod chip case did not have to be decided on the question of whether a substantial part of the whole game was copied or not. He said that constituent parts of it were copyrighted, and when substantial parts of those constituent parts were displayed, infringement occurred.
"In the present case, if the only copyright work that is copied is the game as a whole, the "little and often" would be material," he said. "But the game as a whole is not the sole subject of copyright. The various drawings that result in the images shown on the television screen or monitor are themselves artistic works protected by copyright."
"The images shown on the screen are copies, and substantial copies, of those works. If the game is the well-known Tomb Raider, for example, the screen displays Lara Croft, a recognisable character who has been created by the labour and skill of the original artist. It matters not that what is seen on screen is not precisely the drawing, because the software may cause her to be seen performing actions that are not an exact copy of any single drawing. It is clear that what is on screen is a substantial copy of an original."
"Even if the contents of the RAM of a game console at any one time is not a substantial copy, the image displayed on screen is such," said Lord Justice Stanley Burton. "As we said in the course of argument, it may help to consider what is shown on screen if the 'pause' button on a game console is pressed. There is then displayed a still image, a copy of an artistic work, generated by the digital data in [the console's memory]. The fact that players do not normally pause the game is immaterial, since it is sufficient that a transient copy is made."
"It follows that the appellant was rightly convicted of the offences charged under the CDPA," he said. "[The preamble to the EU Copyright Directive] emphasise[s] the importance of protecting copyright and related rights in multimedia products such as computer games, and if devices such as modchips could be sold with impunity, the UK would not be conferring the protection of those rights required by the Directive."
"Secondly, it seems to us to accord with common sense that a person who plays a counterfeit DVD on his games console, and sees and hears the visions and sounds that are the subject of copyright, does indeed make a copy of at least a substantial part of the game, even though at any one time there is in the RAM and on the screen and audible only a very small part of that work," he said.