Ultrasoft Technologies Ltd v Hubcreate Ltd

Copyright and database-right infringement claims based on access to stored software files require proof that the relevant acts made the files available to the public. A single accidental grant of system-administrator access does not establish access by other customers, particularly where the evidence and commercial circumstances make wider access improbable. Speculative allegations of further exploitation do not justify disclosure or trial where they are inadequately pleaded. Statutory defences need not be determined where the alleged further infringements are not proved.

The claimant and defendant competed to supply software to serviced-office businesses. The defendant admitted copying and retaining three of the claimant’s database files, but the claimant alleged further infringement through issuing or communicating copies to the public and extracting or re-utilising database contents.

The central factual issue was whether customers other than United Business Centres had access to the files while they remained on the defendant’s server. The claimant also advanced an inadequately particularised allegation that the defendant had exploited the files. The court determined the remaining infringement issues and considered the relevance of statutory defences.

1. Further infringement claims. The claims under Copyright, Designs and Patents Act 1988, sections 18 and 20, and regulation 16 of the Copyright and Rights in Databases Regulations 1997, depended on proof that the public had access to the relevant files.
2. Factual finding. The evidence established that only United Business Centres had system-administrator access to the defendant’s server and the claimant’s files. There was no evidence that any other customer had such access. The commercial consequences of wider access, the absence of customer complaints after passwords were changed, and the lack of a credible reason for deliberately distributing global access supported that conclusion.
3. The claimant’s theory that an installation document gave customers global access was speculative. The document lacked the necessary password and was more consistent with an internal installation document.
4. The allegation that the defendant had exploited the files for its own advantage was inadequately pleaded and speculative. The relevant parts of the Particulars of Claim were struck out and the issue did not proceed to trial.
5. The defendant’s proposed statutory defences under sections 50 A to 50D of the Copyright, Designs and Patents Act 1988 and regulation 19(1) of the Copyright and Rights in Databases Regulations 1997 did not arise. In any event, the submissions did not establish that those provisions or the claimant’s licence terms permitted the software to be made freely available to third parties.
6. Hubcreate had not infringed the claimant’s copyright or database rights beyond the infringements already admitted. Judgment was therefore given accordingly.

First-instance judgment. Appellate history was not stated in the judgment.