Gilham v R

A transient visual display generated while a counterfeit computer game is played may reproduce a substantial part of an individual artistic work embodied in the game. The question whether a part is substantial depends principally on its quality and significance, including the skill and labour appropriated, rather than its proportion of the whole game. A copy does not cease to be a copy because it exists only briefly. Accordingly, a person who commercially deals in devices primarily designed to circumvent technological measures may commit an offence under the Copyright, Designs and Patents Act 1988 where playing the counterfeit game produces such protected images.

The appellant was convicted at Worcester Crown Court of offences arising from his commercial sale, importation, advertising and possession of modification chips for games consoles. The chips enabled consoles to play counterfeit games. He was also convicted of money-laundering offences concerning the proceeds of those sales.

The prosecution proved that, while a game was played, digital data was copied temporarily into the console’s RAM. The trial judge directed the jury that a substantial part meant more than minimal. On appeal, the appellant challenged that direction and contended that the small and continually changing amount of data in RAM could not amount to substantial copying. The central issue was whether playing a counterfeit game involved copying a substantial part of a copyright work.

1. Appeal dismissed. The convictions under section 296ZB of the Copyright, Designs and Patents Act 1988, and the associated money-laundering convictions, were properly sustained.

2. The trial direction that substantial simply meant more than minimal was incomplete. Whether a copied part is substantial is a qualitative question. Its importance to the copyright work, and the skill and labour embodied in it, ordinarily matter more than its physical proportion of the whole.

3. The appellant’s argument nevertheless failed on a distinct basis. A computer game contains separate copyright works, including the artistic works that generate its screen images. The image displayed on the screen can be a substantial copy of such an artistic work, even if the RAM at any one moment contains only a small part of the game’s total data. The image may reproduce the recognisable and protected features created by the original artist.

4. The brevity of the display did not assist the appellant. Section 17(6) expressly includes a transient or incidental copy. It was sufficient that the screen displayed a protected image, whether or not a player paused the game.

5. The court therefore did not need to determine the “little and often” question: whether successive small items copied into RAM cumulatively amount to a substantial part of the game as a whole. It stated, obiter, that it would have followed Higgs [2008] EWCA Crim 1324 had that issue required decision.

6. A retrial was unnecessary. The appellant identified no evidence capable of meeting the screen-image basis for liability. The court also reiterated, as practical guidance, that technically complex copyright disputes may appropriately be pursued in the Chancery Division before specialist judges.

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the convictions: [2009] EWCA Crim 2293.
• Crown Court at Worcester: On 19 September 2008, before HH Judge Hooper QC and a jury, convicted the appellant of offences under the Copyright, Designs and Patents Act 1988 and related money-laundering offences.