UK phone hacking scandal – the copyright edition

As many of us know, deleting something from a phone, laptop or computer doesn’t mean it is actually “deleted.” This is because deleting a file (including a text message) is but the first step in permanently removing that file from any electronic device. It’s why you are readily able to restore your uni paper, Christmas card list, or uber-important work document (phew!) from the Recycle Bin on your desktop.

Basically, our computers and phones don’t actually remove, or permanently wipe, deleted files from their “memory.” Rather, the

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device marks that particular area of the memory as being vacant, and therefore capable of being replaced with other data. But, until other data fills that spot, the original data (i.e. the deleted file) remains.

Recovering such data through forensic techniques has become an important tool of law enforcement agencies around the world. Forensic Telecommunications Services Limited (“FTSL”) is a UK-based company which develops methods for recovering data from mobile phones, often for the benefit of law enforcement and intelligence services.

Unfortunately for FTSL, some of the material it had spent significant time and resources developing was published on an information sharing website by the West Yorkshire Police (“WYP”). Naturally, FTSL was unhappy about its valuable information being published to third parties who would otherwise have to pay for it. So FTSL brought proceedings alleging that the publication of its material was a breach of confidence and copyright, and peculiarly for the EU, a breach of database right.

The material in question was a compilation of what are called permanent absolute memory addresses (“PM Abs”) for mobile phones. The trick to being able to recover deleted files from a mobile phone is knowing exactly where on that handset all data (including deleted data) is stored, or, more specifically “…where the manufacturer’s engineers mapped the memory area.” As phone manufacturers do not make this information available, FTSL would determine the PM Abs for a particular handset through a difficult, and time-consuming process, involving a combination of software and considered guess-work.

In lieu of the nature of the information making up these lists, the breach of copyright claim was always going to be difficult for FTSL.

Firstly, in terms of copyright protection for an individual PM Abs, while Justice Arnold acknowledged the amount of time and effort put in by an FTSL employee (a Mr Bradford) in obtaining a single PM Abs, this “…was not the right kind of skill, judgement and labour to attract copyright protection: it was not skill, judgement and labour in devising the form of expression of the addresses.” Second, even if there was copyright in the PM Abs themselves, any such copyright would belong to the phone manufacturer (in this case Nokia).

Further, his Honour found that there could also be no copyright protection for the “database” (being the compiled PM Abs list). Justice Arnold found that the list was of such a rudimentary and practical nature, it could not be said to have resulted from Mr Bradford’s “own intellectual creation”; the list lacking a “…structure which merits copyright protection.”

However, the painstaking efforts of Mr Bradford and FTSL in compiling these PM Abs lists would not be in vain. Under the European Parliament and Council Directive 96/9/EC of 11 March 1996 (“the Database Directive”), an author can protect a database from unauthorised use, even if the actual content of that database would not qualify for copyright protection. Database in the Database Directive is defined as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other

means.”

Database right does not exist in Australia, but would have been of great value to Sensis if it did. Under Australia copyright law, if an author cannot establish that the work is original it will fail to obtain copyright protection, unless the arrangement or structure of that database is itself original. A database right overcomes this gap by offering protection to a compilation of unoriginal works, set out in unoriginal way. It’s what you might call “bi-winning.”

His Honour had no difficulty finding that “there has been a substantial investment in obtaining, verifying or presenting the contents of the database,” and thus FTSL had a database right worthy of protection. FTSL also succeeded on its breach of confidentiality claim.

This case is another reminder that irrespective of the level of effort required to develop a database, originality is likely to be the most telling factor in a determining if it is worthy of copyright protection.

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