Sale of devices enabling pirated video games to be played on game consoles is copyright offence, says Court of Appeal – R v Gilham, Court of Appeal…

The Court of Appeal has ruled that the sale of mod chips – so called because they modify a games console – which enabled pirated video games to be played did constitute an infringement of copyright. It is an offence to sell or distribute ‘any device, product or component which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures’. However, to find that the mod chips enabled purchasers to commit a copyright infringement, it had to be shown that the playing of the pirated games copied ‘a substantial part’ of the work. Mr Gilham, the seller of the devices, claimed that only a small portion of the pirated game was copied from a disc into a games console’s memory at any one time and therefore the amount copied was much less than the required substantial part. The Court of Appeal disagreed.

The Court of Appeal reasoned that it was not necessary that a substantial part of the whole game was copied. Where constituent parts of the game were copyrighted, infringement occurred when substantial parts of those constituent parts were displayed. The Court ruled that the various drawings that resulted in the images shown on the screen were themselves artistic works protected by copyright. The Court of Appeal used the example of the popular Tomb Raider game and the display of Lara Croft in screen, who is a recognisable character created by the labour and skill of the original artist. The Court said it was clear that the appearance of Lara Croft on screen is a substantial copy of an original even if the contents of the RAM of a game console at any one time is not a substantial copy. It was common sense that a person who plays counterfeit DVDs on his games console, and sees and hears the visions and sounds that are the subject of copyright, does in fact make a copy of at least a substantial part of the game, notwithstanding that at any one time there is in the RAM, on screen and audible only a small part of that work.