The process of compiling the fixture list for a season involves many complicated steps. This involves some golden rules such as the number of home or away matches a club may have near other home or away matches or at certain times of the week. In addition to the golden rules, the leagues try to take account of the many requests from clubs as to avoiding home games when certain other teams are playing. There is human input into preparing a fixture list to comply with the golden rules and seek to accommodate the other requests, as well as discussing the position with the police. The process involves some random input but also some human effort.

Following a referral from the Court of Appeal, the European Court of Justice has confirmed that not only is there no database right in the fixture lists, there is also no copyright either. For copyright to apply to databases in the EU under the Directive which sought to harmonise the position across all EU countries, there must be the author’s intellectual creation in the selection or arrangement of the database contents. This intellectual creation in the structure of the database is not the same as the intellectual creation or effort that goes into the creation of the data itself (which is what the human effort done by Dataco involves).

Crucially, the ECJ said that significant skill and labour on building a database is irrelevant to database copyright under EU law now, unless it involves originality in the selection or arrangement of the data.

The ruling also means that databases assembled by automated means rather than creative originality will not qualify for copyright protection.

The report can be found here: https://www.trustwave.com/global-security-report.

The European Commission has suggested and the European Parliament will agree new provisions for roaming, including data roaming on mobiles to take effect from 2014. This will involve consumers being given a choice as to whom they use for roaming services. That means that they could choose a different operator from their home state operator to be their international roaming provider. Restrictions on roaming charges are likely to remain and new restrictions on data roaming out of the EU are likely. Ofcom has noted that a very large number of complaints arise from charges for out of the EU data roaming and indeed there can be few practitioners in the telecoms area who haven’t been approached by people with outrageous bills, quite often for downloads that are automatically re-continued after a flight abroad.  It would be fair to say that the Communications and Internet Services Adjudication Scheme (CISAS) takes a fairly unsympathetic view to people if they are given warnings that they may incur charges and then ignore them. Where no warning has been given, however, they seem much more keen to suggest reducing the charges.

That takes me to an area where the UK and Europe seem to be getting out of step. That’s the regulation of non-geographic number services. The UK’s long-awaited response to its last consultation on the non-geographic numbering review has been delayed and delayed and delayed. It’s now expected sometime after the end of March! The last reason given for this delay was that senior staff involved were also caught up in the 08X appeals. Probably not that a convincing reason! 

We are out of step here with other countries in Europe because, as the Berec draft report on special rate services and enforcement of remedies suggested, we are not taking perhaps the most straightforward route in making things work. The Portuguese have taken, for example, a far more strident line in getting mobile operators to in effect review access charges for services like 118, etc. Here there is supposed to be some form of interim measure going to be suggested by Ofcom, but nobody really knows what that is going to be. A long-term solution is probably, therefore, two or so years away. Plus, the time it will take for the inevitable appeal to the Competition Appeal Tribunal (CAT).

I long remember, from years ago, a meeting in Somerset House, chaired by the then Director General of Telecommunications, concerning the introduction of a general competition condition into PTO licences in the UK, where a telecommunication company which has gone on to be a substantial UK player said they didn’t really care what regulators did as long as they were 70 per cent right and got on with it! That is something we certainly seem to have lost in this country, being bound up as we are in competition-based ex-post regulation where the MNOs control regulation through a judicious use of appeals and greater resources, particularly in the field of competition law. 

The Telecoms Minister, Ed Vaizey, has just publicly given notice of what’s been suspected for some time, which is that his Ministry is dropping proposals to change the CAT appeal procedure to make it more difficult for the mobile network operators (MNOs) to drag regulation into a constant legal mire. The proposal for the crucial sections of Communications Act 2003 to be changed so that the appeal will be on the merits but be on the principals of judicial review is dropped.  Further suggestions are sought from the industry and it is believed a number of operators will have their thinking caps on, creating some kind of appeal mechanism that stops every decision of any importance ending up in the Court of Appeal.

It was the case, pre-2003, that Oftel had surprisingly few judicial reviews and was not subject to on the merits appeals, but it managed to regulate surprisingly well through all of the difficult birth pang periods of the liberalisation of UK telecoms. Let’s hope that those with the thinking caps on will provide further suggestions as to what the Government has called for.

The CAT’s own view on the situation is more or less summed up if you read the judgment in the recent TalkTalk appeal on broadband.  It basically made a pitch for how it would be able to handle appeals cost effectively and try and draw in the confines of the appeal, so as not to turn every appeal into a three ring circus looking at every possible aspect of the subject matter under consideration, but I doubt that is enough.

Meanwhile, the Court of Appeal in the 08X case gave consent to the MNOs to present a complete list of challenges on the law and not just those permitted by the CAT when giving permission to appeal. Rumour has it that the matter will reach the Court of Appeal sometime in March or April, with a decision shortly thereafter. It would seem to me that it is very difficult for Ofcom to complete its non-geo review while the 08X appeals are not decided, so very probably once again the mobile operators have gummed up the works.

Facetiously the other day I suggested that a way to curb regulatory problems at the moment in Europe would be to deem all mobile operators to have significant market power. It might balance things up for the substantial difficulties in European completion law jurisprudence related to sharing joint dominance. Our way to a perfect world…

As an adjunct to the O8X appeals, BT and Everything Everywhere are now embroiled in a dispute over whether or not clauses 12/13 of the BT SIA are fair and reasonable. Clause 12 was a substantial reason why CAT decided in the 08X case the way that it did because it gave weight to BT being able to exercise its contractual powers to vary charges unilaterally, which was contrasted with clause 30 where other operators didn’t have the same power. Essentially Everything Everywhere appear to be trying to use this dispute to nullify the effects of a loss in the Court of Appeal, if that’s what they suffer. All operators, however, should be very wary about a situation whereby somebody ended up with the same power as BT being able to reject price increases or changes without being in the honest broker position of being a transit operator like BT. It also highlights a problem in the CAT for setting policy or the best way of doing things in a vacuum. Somebody looking to set a rule for the future in respect of, for example, ladder pricing would be best taking into account everybody’s position. That is to say how it would apply to both BT and others. The CAT didn’t because of the inbuilt presumption on the part of the judiciary that they should always deal with just the case in front of them. This was reinforced a couple of years ago in the telecoms area by the Court of Appeal in the Floe case.

For those who have missed the boat in not being able to express an interest in the clause 12/13 matter, but who might be affected even if they are late to let Ofcom know of their interest.

Lastly, we had some fun recently acting for the Raspberry Pi Foundation, in particular doing an OEM Contract to enable its product to be commercialised and distributed.  It’s funny, however, that that experience once again just highlights the same points that are always a problem in those contracts.

•        making sure the background IPR remains in the same ownership;

•        dealing with IPRs in improvement  to design; and

•        the length of time from sale to accounting for a royalty.

The Raspberry Pi is a credit-card sized, low-cost computer that is designed to help teach children (and adults) to program. The £22 computer is sold uncased and without a keyboard or monitor, and has been created by volunteers drawn mainly from academia and the UK technology industry.

The computer went on sale this week and its launch is timely given that the Department for Education has just announced that it is considering making changes to the way computing is taught in schools, with the aim of placing greater emphasis on skills such as programming.

In his recent speech outlining the aforementioned changes, the Secretary of State for Education praised the Raspberry Pi, saying “Initiatives like the Raspberry Pi scheme will give children the opportunity to learn the fundamentals of programming… This is a great example of the cutting edge of education technology happening right here in the UK.”

As well as the Government, the Raspberry Pi has naturally created a lot of interest amongst the general public and its launch has been covered by the BBC and the national press. The demand to purchase the new computer has been so overwhelming that The Guardian newspaper even reported that as soon as it went on sale it sold out, crashing the websites selling it in the process! Distributors Premier Farnell reported that its website received half a million hits in 15 minutes, and RS Components said that it was the greatest level of demand it had ever received for a product at any one time.

For those who have been unable to purchase one, don’t worry – more will become available soon, and an even cheaper £16 version will go on sale later in the year.

Ted Mercer, The Partner who did the work, comments, “It has been very exciting to work on the OEM, commercialisation and distribution contract to enable the Raspberry Pi to go on sale and we wish it every success in inspiring a new generation of schoolchildren to learn to program.”

Apple recently wrote to the European Telecommunications Standards Institute (ETSI), which is approved by the European Commission to impose the standards, stating that all firms involved in the technology industry should sign up to them. The letter was not sent as a public communication, but was later leaked to the Wall Street Journal. Microsoft has followed suit, stating that the Internet only works because of patents being licensed between competitors; and Cisco Systems, a networking equipment manufacturer, has also indicated its support.

The European Commission announced recently that it was investigating Samsung, which signed up to the essential standards imposed by ETSI in 1998, for pursuing an injunction against the use by competitors of standard patents that it owned and for not licensing the patents on fair, reasonable and non-discriminatory terms.

The High Court had initially ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

The European Court of Justice’s advisor has now given his opinion. Advocate General Bot has followed the High Court’s ruling. He said that the language and functionalities of a computer program were not eligible for copyright protection. They amounted to ideas without concrete expression. Functionality was the set of possibilities offered by a computer system. It is the service that the user expects from it. For example, in a program for airline tickets, this included finding the flight, checking availability, booking a seat, registering details, paying and editing. The list of possible functionalities was finite. However, the means of achieving the concrete expression of those functionalities is eligible for protection.

We will now await several months for the decision of the European Court of Justice. The Advocate General’s opinion is not binding, but is usually followed by the court.

The ruling is an important reminder that exit provisions in agreements are not something to worry about later; rather, they are just as important as those provisions of an agreement which are intended to have immediate effect. If exit provisions have not been agreed, the party receiving the services is at serious risk of being without those services for a period of time until another provider is found, with potentially catastrophic impacts on its business. Similarly, the service provider may suddenly be without a revenue stream without any form of transition period to balance the impact.

The ruling also shows the importance of not just having exit provisions within an agreement, but to make sure that those provisions set out the requirement for an exit plan which clearly defines what happens to the services on termination – in an IT contract, for example, this should include the specific hardware and software that is needed, the level of support and maintenance that will be provided, how long the transition services will be provided for and how much those transition services will cost.

Paul Gershlick, a Partner and Head of the Pharmaceutical and Life Sciences sector at Matthew Arnold & Baldwin LLP, says, “It is absolutely crucial to protect patient data. However, privacy groups again appear to be pursuing a single concern agenda – ie privacy. What about improving patient care and improving or saving lives? Instead of criticising the Government’s healthcare data strategy for being pursued too fast, people worried about privacy should instead be working with the Government to make sure the privacy safeguards are in place so that the health benefits can be achieved as soon as possible. The longer any delays take, the fewer number of people who will benefit from any reforms. When people’s lives are at stake, there should be no time to lose.”

One of CCWY’s officers had created a similar PM Absolute list with accompanying software, and received several PM Absolutes from a security operative who used FTS’s software. That officer then posted those PM Absolutes on an Internet forum for other officers to add to the list, and also used them to develop his own list and software.

FTS issued proceedings, claiming that its list was copyright protected (as it was a table or compilation that was not a database that was its own intellectual creation) and that CCWY and the officer in question had reproduced that list and infringed the copyright. FTS also claimed that the list was protected by database rights that had also been infringed and that its confidence had been breached by the publishing of the list on the Internet forum.

The High Court ruled that:

1. there was no copyright in the list under the Copyright, Designs and Patents Act 1988 as the list had been put together by trial and error and not by the type of intellectual creation of the author that was necessary to be protected by copyright. The list was not planned and had no set design, was not the author’s own intellectual creation due to the way it was arranged and selected, and had no structure that warranted copyright protection; rather, it was simply a list of data compiled over time;
2. the list was a database that FTS had made a substantial investment in obtaining and verifying that data contained in it, which did require skill and effort; it was therefore protected by database right. CCWY and the officer had extracted and reutilised a substantial part of the database, both in terms of the number of PM Absolutes and the detail contained in each, and had breached the database right; and
3. CCWY and the officer had breached FTS’s confidential information by posting the list on the website forum.

CCWY was held to be vicariously liable for the officer’s actions.

UK patent applications can be refused on various grounds, one of which is if the patent subject matter falls within an excluded type, such as pure business methods, a method for performing a mental act or computer programs that do not have a technical effect.

The High Court has allowed the appeal, and has referred the application back to the IPO for reconsideration.  The ruling was made on the basis that the application made a significant contribution with a relevant technical effect, such that the software should not be considered wholly within the computer program exclusion from patentability.

This ruling is further evidence of the alleged ‘over strict’ interpretation of the exclusions from patentability by the IPO.

A hearing officer at the Intellectual Property Office has allowed Hewlett-Packard’s appeal against the rejection. The appeal was allowed following the consideration of previous cases, in particular the High Court’s ruling in Halliburton, which concluded that mental acts could be patented where mathematical calculations with software and are technical enough to be patentable, and that the exclusion of patentability for mental acts should be interpreted narrowly. The application was sent for further examination by the IPO following the decision.

Last year, Apple filed proceedings against HTC for the infringement of 20 patents, but HTC counterclaimed, accusing Apple of patent infringement, and attempted to have the sale of iPhones, iPads and iPods banned in the USA.

Meanwhile, Apple and Samsung are in a spat, accusing each other of copying each other’s technology.

The BSA recently received an anonymous tip-off that a York-based company was using unlicensed software and, after reaching an agreement with the company, handed them a £29,000 bill to cover licences and costs. The BSA has previously targeted Birmingham and now plans to audit 1,500 companies in Yorkshire. The BSA estimates that it received fines and fees of £2.2 million in the UK in 2010.

• Continued push for a single European Union patent system.
• Modernisation of the European Community Trade Mark system. This would include speeding up the registration procedure and increasing certainty over what constitutes a registrable trade mark.
• Creating a comprehensive framework for copyright in the digital single market. That would include multi-territorial collective management of copyright so that there would be online copyright licensing. There would also be a consultation on user-generated content to see if there should be more freedom for amateur producers of non-commercial film to be exempt when incorporating other copyright works. In addition, the Commission said it would propose a Directive on permitted uses of orphan works, and it actually proposed the Directive this at the same time as the strategy document.
• Replacement of the Customs Regulation to strengthen enforcement of intellectual property rights. As with the orphan works proposal, this was also introduced at the same time as the publication of the strategy.

For more on the strategy, click here: http://ec.europa.eu/commission_2010-2014/barnier/headlines/news/2011/05/20110524_en.htm.

• Creation of a Digital Copyright Exchange. This would be a centralised digital copyright works marketplace where licences to copyright content could be readily bought and sold, akin to a copyright shop. This would extend what currently happens with through music collections agencies such as PRS. The aim is to have this implemented by the end of 2012. In addition, the UK should support the European Commission’s proposals to establish a framework for cross-border licensing.
• Introduction of legislation to permit use of orphan works – copyright works where the rights owner has not been ascertained. The European Commission has also come up with similar plans recently.
• Allowing wider exceptions for lawful copying, such as to include format shifting between a laptop and mp3 player, which is still unlawful. This may also include copyright exceptions for non-commercial research, such as digital copying of medical journals for computerised analysis in research. Parody and library archiving would also be exceptions to copyright. The exceptions would be enshrined in law and non-excludable by contracting out by agreement between the parties. There is no place in the report for anything as extensive as the “fair use” exception along the lines that US law has, as that would not be compatible with European Union law.
• Increasing the Intellectual Property Office’s ability to give legally binding opinions on changes to intellectual property law in response to economic or technological changes.
• A careful look at the enforcement of intellectual property rights. The Government should look not just to enforcement but also education, growing legitimate markets and modernising copyright law. Other countries’ experiences should be considered when the Digital Economy Act starts to become operational in 2012.
• Try to remove patent thickets that stifle innovation. Thickets arise where there are overlapping patent claims by multiple applicants, resulting in delays and extra costs in innovation. This should involve cutting backlogs in patent applications. There should also be a disincentive – perhaps through cost of additional fees for patent renewals – to discourage patents that do not add much value. Computer-related patent rules also need to be clearer and stricter to avoid patents being granted for non-technical inventions or business methods.
• Investigate whether the system of protection for designs should be made clearer. The Intellectual Property Office should conduct an assessment based on evidence within the next 12 months to consider the relationship between design rights and innovation.

It now remains to be seen what the Government will do in terms of implementation of the recommendations within the report. There have been other intellectual property reviews previously – most notably the Gowers Review – which were not then followed-up significantly.

The CAP Code is a code of practice governing the content of adverts and marketing communications, administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

The High Court dismissed Southwark’s claim. The framework agreement and the order had to be read together, so the reference to the Orchard software being of satisfactory quality had to be read in conjunction with the warranty in the order. The software conformed to the standard set out in the order. The judge said that satisfactory quality should be interpreted in that light rather than given the meaning under the Sale of Goods Act. It was clear from the wording in the contract that no statutory terms (including fitness for purpose or satisfactory quality) would be implied. The judge added that, in any event, the Sale of Goods Act would not apply in this case because there was no sale of any goods, as the contract made clear that there was no transfer of property in the software as the software was licensed rather than sold and on termination of the agreement all copies had to be returned or destroyed.

Atos failed to fully understand the complexity of De Beers’ requirements, resulting in significant delays to the project, but this was due, in part, to De Beers’ inability to finalise the scope of the project. There was misunderstanding on both sides and the project did not progress as well as had been hoped. As a result of the delays, De Beers decided to withhold payment of an interim invoice.

In response, Atos Origin refused to continue work on the project unless the contract was renegotiated, as it believed that the project had altered substantially in cost, specification and deadline. Atos Origin demanded that the contract be renegotiated to reflect the change in scope. Although negotiations took place, a variation to the original agreement could not be agreed and no further work took place.

Both parties claimed that the other had repudiated the agreement, breaching its terms by indicating that they no longer wished to be bound by it.

The High Court ruled that both parties had contributed to the failure of the contract. De Beers had not had a right to withhold payment of the interim invoice, but that non-payment did not amount to a repudiatory breach. However, in stopping its performance of its obligations under the contract, Atos Origin had committed a deliberate and wrongful breach of contract, which amounted to a wrongful repudiation of the agreement.

The High Court noted that Atos Origin did actually have a right under the contract to suspend work whilst waiting for De Beers’ payment, but the way in which Atos Origin communicated the threat to suspend services was an indication that Atos Origin was not willing to continue on the terms of the existing agreement, and would only proceed on their own terms.

The High Court ruled that De Beers was entitled to recover £4.4 million to cover the cost of modifying its old software system and purchasing a replacement system, less costs it would have incurred had Atos Origin not terminated the contract, totalling nearly £3 million. As such, Atos Origin was liable to pay De Beers some £1.4 million in damages, not including any claims for interest.

Simon Weinberg, a solicitor at Matthew Arnold & Baldwin LLP and assistant editor of Upload-IT, comments: “This case shows how important it is to be realistic and to have clear intentions in negotiations over an IT contract, together with commercial sensitivity in any subsequent renegotiation or variation. Suppliers must understand their customers’ requirements and ensure that they have the necessary expertise to fulfill their obligations under any agreement they enter into. At the same time, customers must limit the risk they expose themselves to, making sure that they participate in their project and that they are doing as much as possible to prevent the failure of the project.

“Here the High Court ascribed blame to both parties, and could so easily have ruled that no damages were payable. Business-critical IT contracts are essential to any business and can be expensive. It makes sense to negotiate them properly and to ensure the parties’ expectations are properly reflected in a clear written contract.”

The Supreme Court does not hear cases that involve either jurors or witnesses, and the information that is disclosed in the Supreme Court is rarely subject to any degree of confidentiality. However, certain cases will be subject to stricter reporting restrictions, but in those instances people present in the courtroom will have the restriction made clear to them at the start of any proceedings.

The EC’s decision shows that there were serious competition concerns in relation to the merger, in particular with regards to the potential bundling of CPUs from Intel with the security products produced by McAfee, if such bundling did not allow for interoperability of the McAfee security products with the CPUs manufactured by Intel’s competitors and vice versa.

As a result, the EC gave its conditional approval to the acquisition under the EC Merger Regulation, the conditions being that such interoperability be possible and all necessary information for interoperability be made available to Intel’s, and McAfee’s, competitors.

The ECJ has ruled that, under the European Union’s Software Directive, there is no software copyright in the graphical user interface (a ‘GUI’). Software copyright protects just the underlying code. However, it said that there could be copyright protection for the GUI under the EU’s Information Society Directive if the GUI amounted to the author’s own intellectual creation.

This case gave the expected result that there is no software copyright in GUIs. However, the fact that a GUI may be protectable by copyright gives cause for concern for anyone who wants to copy the way a user interacts with a software program on a screen. The ECJ has been asked to give another ruling on copyright protection for programming languages, interfaces and functionality in the case of SAS v World Programming in the next few months, so it will be interesting to see what the ECJ says in that case.

The Commission had called for tenders to update its machine translating systems. Unfortunately, in so doing, it was stepping all over Systran’s copyright and know-how. Although the terms of the earlier contract between the Commission and Systran had not been clear, the Commission was still infringing the intellectual property rights. The fine represented €7m for the fees which Systran would have charged the Commission for permission to use its intellectual property rights, and a further €5m for the other effects on Systran’s turnover.

The jury’s verdict can be found at http://www.cand.uscourts.gov/CAND/Judges.nsf/b75c9d2875ba29bf88256d480060b70f/e2d2869a39a60704882577e50002cd0a/$FILE/oracle-v-sapag.pdf.

Technical standards are usually agreed by businesses that have an interest in co-operating so that they can all benefit from the greater good, and this is usually on the basis of an agreement that any patents involved would be licensed on fair, reasonable and non-discriminatory terms. For the greater good in this case, it must be hoped that the parties will stop fighting and will settle their differences long before the US District Court for the Western District of Washington has to rule.

The ICO had initially decided that Google had not committed any breach, but Google admitted that it had collected emails and passwords from home wireless networks whilst its cars photographed the country’s streets. The admission left the ICO with little choice but to reopen the investigation.

Google has now been told by the ICO that all such data collected must be deleted as soon as possible, and enforcement action will be taken if further breaches take place.

Another aspect of the Commission’s review involves looking at standardising the availability of online content across the European Union. The Commission is concerned that the EU market is fragmented, expensive, difficult and primitive, meaning that everyone suffers – from rights holders through to consumers. There is a particularly concern that users can buy music from any physical shop, but are restricted from purchasing music online from different jurisdictions. Removing the barriers would allow more trade and more user choice, the Commission says.

Scott Charney has compared the computer virus with public health warnings, under which certain people are quarantined to prevent the spread of a disease. He suggested that, in order to protect users from networks of infected computers under the control of cyber criminals, infected computers should be put in quarantine to prevent the spreading of a virus.

Such infected networks are known as botnets. When computers become infected with a virus, usually from an email attached or software download, it becomes part of the wider infected network. The network is then effectively leased out by those controlling it, to allow others to use it for circulating spam or attacking websites.

He suggested that, before connecting to the Internet, each computer should need to produce a health certificate to prove that it is uninfected. If the certificate cannot certify this, then the computer would need to download certain updates to upgrade its anti-virus settings. He also said that users should not be cut off entirely, but that further discussions would need to take place if his suggestion was taken up to allow flexibility for users who find viruses on their machines.

It’s all very well in theory, but is it fair to impact on and effectively punish the unsuspecting user whose computer has been hijacked? The debate will obviously rumble on…

See the full text of Scott Charney’s proposals at http://www.microsoft.com/downloads/en/details.aspx?FamilyID=062754CC-BE0E-4BAB-A181-077447F66877&amp%3Bdisplaylang=en

The High Court ruled that S had been in breach of contract and KDP had been right to terminate. The Court of Appeal has now upheld that decision. The agreement had required a full and accurate report every six months, including details of who the end users were, the contracts with them, the pricing and costs deductions. Those reports had not been provided. KDP had acted properly in provide notice of the breach, the required cure and the intention to terminate if not properly cured. KDP then properly terminated when there had not been an adequate correction after that first letter.

Mark Weston, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘This case shows the importance of getting the process right when a party is aggrieved about the other party’s failure to perform its obligations under the contract. Too often, businesses either terminate too early without proper warning, or don’t terminate when they should, or don’t set up their exercise of their right to terminate properly. If they get that process wrong, they could face a claim for their own breach of contract. That’s what S sought to argue here. However, because KDP had involved its lawyer at the earliest stage and followed their advice, it got the result it wanted.’

The need for software escrow agreements has increased dramatically with the economic downturn, with many software suppliers experiencing financial difficulties and failing to fulfill their support obligations and having increased risk of going out of business. The lack of a software escrow agreement in such a situation could leave the software licensee in serious difficulty if they want to keep using their business-critical software.

The first investigation had related to a country of purchase rule which had made it hard for customers to have their iPhones repaired in a different country from which it was purchased. The Commission had been concerned that Apple’s agreements amounted to carving up the single European market and adversely affecting trade between Member States, contrary to Article 101 of the Treaty on the Functioning of the European Union. However, Apple has agreed no longer to enforce the country of purchase rule.

The second investigation had concerned licence agreement restrictions with independent developers of applications for the iPhone operating system whereby those restrictions could have hindered competition from devices operating on other platforms. In response to the Commission’s investigation, Apple has agreed to relax those restrictions too.

The Tribunal accepted that there would likely to be a prejudice to the DWP’s commercial interests. However, it did not accept that it would actually prejudice. There was no evidence to show that it was more probable than not that there would be prejudice – this was mere speculation. The Tribunal did agree to keep one bit secret, though – Atos’s financial model should have special protection as a trade secret. The Tribunal said that for trade secrets, there was a stronger public interest in keeping it secret because of the investment involved, and competitors would get an unfair advantage. However, for liability caps, benchmarking and the rest of the contract, the public interest favoured an order for disclosure so that the public could know the service levels, performance measures, costs and risks.

On a preliminary hearing on these points (rather than a ruling as to whether the system was actually faulty), the Court of Appeal agreed with the High Court in that a series of minor errors could amount to a fundamental breach. Also, all of the following types of loss did not fall within any of the excluded categories:

• Compensation payments to customers.
• Increased gas distribution charges.
• Employing more staff to deal with doing the things that the IT should have done, and also to deal with customer issues.
• Writing off millions of pounds of unbilled or late bills caused by the IT system not working.
• Paying to investigate and get the IT problem resolved.

In addition, the Court of Appeal said that it was not necessary for the customer to state in their warranty correction notice the nature of the alleged material errors or the serious adverse effect.

The Court of Appeal added that the warranty correction clause was construed as requiring the serious adverse effect of the Fundamental Defect to have been suffered by the customer before the end of the warranty period for the supplier to have to remedy. The idea of a limited warranty period was to draw a line in the sand and not create an indefinite warranty obligation, so even if it was known that a future serious adverse effect would take place, the warranty remedy obligation only applied if the serious adverse effects kicked in before the warranty period expired.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘This case is interesting for all commercial contracts but especially IT projects (where a number of small errors frequently occurs), particularly for the following two reasons: (1) it shows that breaches which individually are minor can cumulatively mount up to be something entitling the purchaser to more serious remedies; (2) it highlights non-lawyers’ frequent misconception as to what indirect or consequential losses involve, when the reality is that many losses that non-lawyers consider to be ‘indirect’ are really understood at law to be ‘direct’.’

Playables claimed that it did not know that the devices would be used for an unlawful purpose, as it could be used for legitimate home-made games. However, the High Court rejected that argument. Two provisions of the Copyright Designs and Patents Act 1988 (as amended) were broken. One involved strict liability, meaning that knowledge was not needed – just the fact that the device circumvented the security measures; the mere fact that the device could be used for a lawful purpose was not a defence. Another section of the Act – this time involving knowledge – was also broken because Playables had reason to believe that the device would be used to make infringing copies of the games. The use of R4 cards (which the device contained) was very well known to be used for video game piracy. Given 165,000 devices had been seized and the relatively minor proportion of the market represented by lawful use, it was not credible to argue that Playables did not know the devices would be used for infringing copies. Accordingly, Playables had no realistic prospect of success and Nintendo’s summary judgment application was granted.

The action comes following the European Commission’s other high-profile competition law battles with major IT and Internet players such as Microsoft, Google, Intel and DRAM chip suppliers.

The High Court ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

Mark Weston, a Partner at Matthew Arnold & Baldwin, comments: ‘There have now been three big cases on the extent to which the functionality within software can be copied if the underlying source code has not been copied. In order to enable players within the software industry to properly compete with each other, it is to be hoped that the European Court of Justice will confirm the English courts’ understanding of the law in this area. A definitive ruling on these issues will take several months. Until then, the current position set out in the English cases remains good law, although there will now follow a period of uncertainty as to what may happen next.’

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘This case shows the scale of the damages that can be incurred if something goes wrong, which frequently does happen with IT projects. That is why it is important for a supplier to have a good contract in place at the outset so as to be protected against a catastrophic event that could cause disproportionate losses. In most cases, it is possible to cap liability, although the clause needs to be well-drafted to comply with the law. If the clause does not work legally, courts often refuse to uphold them.‘