Gilham v R – UK CA Conviction for Selling Mod Chips

November 13th, 2009 by Barry Sookman Leave a reply »

In Gilham v R [2009] EWCA Crim. 229, , the UK Court of Appeal upheld the conviction of a seller of mod chips, holding that the sale of mods chips violates the UK anti-circumvention legislation.

In the course of giving reasons, the Court made some observations on whether copying of sounds and images from a DVD into the RAM of a video console in the course of playing a game could constitute copyright infringement. The court held that copying of even a single frame of a movie of video game could be considered a reproduction of the artistic works embodied in the game. The Court also expressed dicta that copying of only small amounts of music at any one time “copying little and often” could be considered an infringement.

According to the Court:

“It follows that 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. 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 RAM. 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, and of the money-laundering offences relating to the proceeds of his sales. We reach this conclusion with satisfaction. The recitals to Directive 2001/29/EC emphasise 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. In other words, had it been necessary to decide this appeal on the “little and often” point, we should have followed the judgment of Jacob LJ in Higgs. In the event, however, we have not had to base our judgment on that point.”

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