Forensic Telecommunications Services Ltd v West Yorkshire Police & Anor

Copyright protects the author’s intellectual creation in the selection or arrangement of data, not the effort involved in discovering the data itself. A list of numerical data may nevertheless qualify as a database. Investment in obtaining and verifying the data can support database right, even where it does not support copyright. Copying a quantitatively or qualitatively substantial part infringes database right. A public law-enforcement purpose is not automatically non-commercial fair dealing, and forensic use of copied data is not necessarily scientific research. Confidential information supplied for a limited purpose must be used only for that purpose. An employer may be vicariously liable for its employee’s infringement or misuse, but posting information on an exchange does not, without more, authorise a commercial third party to reproduce it.

Forensic Telecommunications Services Ltd claimed copyright and database right in lists of permanent-memory absolute addresses used to extract data from Nokia mobile phones. It also claimed that the lists were confidential information. The defendants were the Chief Constable of West Yorkshire Police and a former detective constable, Stephen Hirst.

The claimant alleged that lists posted on an information-exchange website and a list distributed with third-party software were derived from its list. The issues included subsistence of copyright and database right, copying or extraction of a substantial part, fair dealing, liability, and breach of confidence.

1. Copyright. The individual numerical addresses were not copyright works. The skill, judgment and labour used to ascertain them did not devise the form of expression of a literary work, and the addresses were not the author’s own intellectual creations. The collection was a simple database because its rows and columns made the addresses systematically arranged and individually accessible. Its selection and arrangement, acquired by happenstance and presented in the most obvious way, did not constitute the author’s own intellectual creation. Copyright therefore did not subsist: paras [78]-[95].
2. If copyright had subsisted, the defendants’ lists would have reproduced a substantial part, quantitatively and qualitatively. The similarities raised an inference of copying, which the defendants failed to rebut. The fair-dealing defence also failed. The use was for law enforcement rather than scientific research; it was non-commercial, but the copying competed with the claimant, concerned an unpublished list, and was extensive. No sufficient acknowledgement was given: paras [97]-[115].
3. Database right. The effort involved in discovering the addresses was investment in obtaining the contents of the database. The claimant also invested in verifying them. That investment was substantial. The defendants extracted and re-utilised a substantial part of the database, both quantitatively and qualitatively. Database-right infringement was established in relation to the West Yorkshire Police lists: paras [120]-[128].
4. Liability. The former constable was liable for his own acts, and the police authority was vicariously liable for relevant acts by him and other members of the unit. There was no sufficient authorisation claim concerning the third-party list, and authorisation is not itself an infringing act for database right: paras [116]-[118], [124]-[127].
5. Confidence. The list had the necessary quality of confidence because it was valuable information, collated through skill and labour, and not public. The former constable received it for a limited purpose and was under an equitable obligation to use it only for that purpose. Posting and internally copying it constituted misuse. The claims concerning the West Yorkshire Police lists succeeded, but the claims concerning the third-party list failed: paras [129]-[140].