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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Forensic Telecommunications Services Ltd v West Yorkshire Police & Anor  EWHC 2892 (Ch) (09 November 2011)
Cite as:  EWHC 2892 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| FORENSIC TELECOMMUNICATIONS SERVICES LIMITED
|- and -
|THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE
Jonathan Hill (instructed by Director of Legal Services, West Yorkshire Police) for the Defendants
Hearing dates: 19-21, 24 October 2011
Crown Copyright ©
MR JUSTICE ARNOLD :
|Jonathan Clark MBE||3|
|The Defendants' witnesses||9-11|
|Ronald van der Knijff||11|
|The missing witness||12-15|
|Methods of extracting data from mobile phones||16-19|
|PM Abs addresses||20-27|
|FTS Hex and FTS's PM Abs Lists||28-32|
|The development of CLiVE and the Defendants' lists of PM Abs addresses||33-42|
|FTS's concerns and the 8 July 2008 meeting||43-47|
|DC Miller's July 2008 program||48-49|
|The legal context for the copyright and database right claims||52-73|
|WIPO Copyright Treaty||55-57|
|Information Society Directive||63-64|
|Interpretation of domestic legislation in the context of European directives||69|
|Interpretation of European directives||70-73|
|Subsistence of copyright||75-96|
|Reproduction of a substantial part||107|
|Fair dealing defence||108-115|
|For the purposes of research||109|
|For a non-commercial purpose||110|
|Liability of the Defendants||116-119|
|Innocence defence to damages||118|
|Liability of the Defendants||125-126|
|Innocence defence to damages||127|
|Breach of confidence||129-140|
|Necessary quality of confidence||131-135|
|Circumstances importing an obligation of confidence||136-137|
|Liability of the Defendants||139|
|Summary of conclusions||141|
The Defendants' witnesses
The missing witness
Methods of extracting data from mobile phones
PM Abs addresses
i) Start address smaller than the unique start address – in this case the command will fail and no data will be returned.
ii) Start address larger than the unique start address – in this case some data might be missed. This might not be noticed by the forensic examiner. As some data might be missed, a start address larger that the unique start address would not be a correct PM Abs address, even though use of this start address will return usable data.
iii) End address smaller than the unique end address – in this case some data might be missed. This might not be noticed by the forensic examiner. As some data might be missed, an end address smaller than the unique end address would not be a correct PM Abs address, even though use of this end address will return usable data.
iv) End address larger than the unique end address – in this case an error message is generated, but nevertheless all data located before the unique end address will be returned. As data will not be missed, this would be a correct end address.
i) there is only one unique start address and only one unique end address;
ii) there is only one correct start address, but many possible correct end addresses;
iii) there are many start and end addresses that will return data, but where some data may be missed, and thus the addresses are not correct.
FTS Hex and FTS's PM Abs Lists
The development of CLiVE and the Defendants' lists of PM Abs addresses
FTS's concerns and the 8 July 2008 meeting
DC Miller's July 2008 program
The legal context for the copyright and database right claims
(1) The expression 'literary and artistic works' shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations, shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable."
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Computer Programs and Compilations of Data
2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations, shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
Limitation and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author."
Relation to the Berne Convention
(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.
(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.
(3) Hereinafter, 'Berne Convention' shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.
(4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.
Scope of Copyright Protection
Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Application of Articles 2 to 6 of the Berne Convention
Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.
Compilations of Data (Databases)
Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.
…Article 10Limitation and Exceptions
(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author."
"Concerning Article 5
The scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement."
" Whereas, for the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive;
 Whereas, in accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive;
 Whereas, in accordance with the legislation and jurisprudence of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright;".
Object of protection
1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term 'computer programs' shall include their preparatory design material.
2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.
3. A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.…"
"(5) Whereas copyright remains an appropriate form of exclusive right for authors who have created databases;…(13) Whereas this Directive protects collections, sometimes called 'compilations', of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro- optical processes or analogous processes;(14) Whereas protection under this Directive should be extended to cover non-electronic databases;(15) Whereas the criteria used to determine whether a database should be protected by copyright should be defined to the fact that the selection or the arrangement of the contents of the database is the author's own intellectual creation; whereas such protection should cover the structure of the database;(16) Whereas no criterion other than originality in the sense of the author's intellectual creation should be applied to determine the eligibility of the database for copyright protection, and in particular no aesthetic or qualitative criteria should be applied;(17) Whereas the term 'database' should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data; whereas it should cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed; whereas this means that a recording or an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of this Directive;…(19) Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right;".
"CHAPTER ISCOPEArticle 1Scope1. This Directive concerns the legal protection of databases in any form.2. For the purposes of this Directive, 'database' shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.…CHAPTER IICOPYRIGHTArticle 3Object of protection1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.…CHAPTER IIISUI GENERIS RIGHTArticle 7Object of protection1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.2. For the purposes of this Chapter:(a) 'extraction' shall mean the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form;(b) 're-utilization' shall mean any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community;Public lending is not an act of extraction or re-utilization.3. The right referred to in paragraph 1 may be transferred, assigned or granted under contractual licence.4. The right provided for in paragraph 1 shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right provided for in paragraph 1 shall be without prejudice to rights existing in respect of their contents.5. The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted."
"(15) The Diplomatic Conference held under the auspices of the World Intellectual Property Organisation (WIPO) in December 1996 led to the adoption of two new Treaties, the 'WIPO Copyright Treaty' and the 'WIPO Performances and Phonograms Treaty', dealing respectively with the protection of authors and the protection of performers and phonogram producers. Those Treaties update the international protection for copyright and related rights significantly, not least with regard to the so-called 'digital agenda', and improve the means to fight piracy world-wide. The Community and a majority of Member States have already signed the Treaties and the process of making arrangements for the ratification of the Treaties by the Community and the Member States is under way. This Directive also serves to implement a number of the new international obligations.
(20) This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular Directives 91/250/EEC, 92/100/EEC, 93/83/EEC, 93/98/EEC and 96/9/EC, and it develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive.
(32) This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. …
(42) When applying the exception or limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding of the establishment concerned are not the decisive factors in this respect.
(44) When applying the exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter. The provision of such exceptions or limitations by Member States should, in particular, duly reflect the increased economic impact that such exceptions or limitations may have in the context of the new electronic environment. Therefore, the scope of certain exceptions or limitations may have to be even more limited when it comes to certain new uses of copyright works and other subject-matter.
2. Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing Community provisions relating to:
(d) the legal protection of databases;
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
Exceptions and limitations
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non- commercial purpose to be achieved;
5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."
"Copyright and copyright works
1.(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work-
(a) original literary, dramatic, musical or artistic works,
Literary, dramatic and musical works
3.(1) In this Part:
'literary work' means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes:
(a) a table or compilation other than a database,
(d) a database.
3A.(1) In this Part 'database' means a collection of independent works, data or other materials which—
(a) are arranged in a systematic or methodical way, and
(b) are individually accessible by electronic or other means.
(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author's own intellectual creation.
The acts restricted by copyright in a work
16.(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom –
(a) to copy the work (see section 17);
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it –
(a) in relation to the work as a whole or any substantial part of it
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.
(4) This Chapter has effect subject to-
(a) the provisions of Chapter III (acts permitted in relation to copyright works)
Infringement of copyright by copying
17.(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
Research and private study
29.(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.
Provisions as to damages in infringement action
97.(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
178. In this Part-
'sufficient acknowledgement' means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless –
(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry."
12.(1) In this Part—
'database' has the meaning given by section 3A(1) of the 1988 Act (as inserted by Regulation 6);
'extraction', in relation to any contents of a database, means the permanent or temporary transfer of those contents to another medium by any means or in any form;
'insubstantial', in relation to part of the contents of a database, shall be construed subject to Regulation 16(2);
'investment' includes any investment, whether of financial, human or technical resources;
're-utilisation', in relation to any contents of a database, means making those contents available to the public by any means;
'substantial', in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both.
13.(1) A property right ('database right') subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.
(2) For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 Act.
Acts infringing database right
16.(1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.
(2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.
Exceptions to database right
20.(1) Database right in a database right which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if -
(a) that part is extracted from the database by a person who is apart from this paragraph a lawful user of the database;
(b) it is extracted for the purpose of illustration for teaching or research and not for any commercial purpose; and
(c) the source is indicated.
Application of copyright provisions to database right
23. The following provisions of the 1988 Act apply in relation to database right and databases in which that right subsists as they apply in relation to copyright and copyright works -
sections 96 to 102 (right and remedies of copyright owner and exclusive licensee)
Interpretation of domestic legislation in the context of European directives
Interpretation of European directives
"According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case C-156/98 Germany v Commission  ECR I-6857, paragraph 50, and Case C-53/05 Commission v Portugal  ECR I-6215, paragraph 20)".
"Moreover, Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C-341/95 Bettati  ECR I-4355, paragraph 20 and the case-law cited)."
In that case the Court interpreted Article 3(1) of the Information Society Directive in accordance with Article 8 of the WIPO Copyright Treaty.
Subsistence of copyright
"Skill, judgement and labour in devising ideas, procedures, methods of operation and mathematical concepts is not protected by the copyright in a literary work. What is protected by copyright in a literary work is the skill, judgement and labour in devising the form of expression of the literary work."
"… it is important to be clear as to the basis upon which a compilation of unprotectable subject-matter can be protected as a copyright work. As can be seen from Article 2(5) of the Berne Convention, Article 10(2) of TRIPS and Article 5 of the WIPO Copyright Treaty, compilations are protected (whether or not the items compiled are protected) which 'by reason of the selection or arrangement of their contents constitute intellectual creations'. Similarly, EU legislation adopts the test of 'intellectual creation' for the originality of computer programs (Article 1(3) of the Software Directive), databases for the purposes of copyright (Article 3(1) of [the Database Directive]) and photographs (Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonizing the terms of protection of copyright and certain related rights, now codified as Directive 2006/116/EC). It is now clear from [Case C-5/08 Infopaq International A/S v Danske Dagblades Forening  ECR I-0000] at - that there will only be reproduction of a substantial part of a literary work, including a compilation, where what has been reproduced represents the expression of the intellectual creation of the author of that literary work."
i) Copyright only subsists in compilations of data which by reason of the selection or arrangement of their contents constitute intellectual creations.
ii) Such copyright protection does not extend to the data itself.
iii) But this is without prejudice to any copyright which subsists in the data itself.
"30. Classification of a collection as a database then requires that the independent materials making up that collection be systematically or methodically arranged and individually accessible in one way or another. While it is not necessary for the systematic or methodical arrangement to be physically apparent, according to the 21st recital, that condition implies that the collection should be contained in a fixed base, of some sort, and include technical means such as electronic, electromagnetic or electro-optical processes, in the terms of the 13th recital of the preamble to the directive, or other means, such as an index, a table of contents, or a particular plan or method of classification, to allow the retrieval of any independent material contained within it.
31. That second condition makes it possible to distinguish a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without any means of processing the individual materials which make it up.
32. It follows from the above analysis that the term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials."
"78. … But in the end, in my opinion it is essential to consider exactly what the claimant did to decide (both qualitatively and quantitatively) whether he created an original music work within the meaning of the Act. For, whilst it is trite that mere servile copying (for instance tracing or photocopying) does not amount to originality, there are clearly forms of 'copying' which do - the shorthand writer's copyright is a paradigm example which has stood since Walter v Lane  AC 539.
83. … I think the true position is that one has to consider the extent to which the 'copyist' is a mere copyist - merely performing an easy mechanical function. The more that is so the less is his contribution likely to be taken as 'original'. Professor Jane C Ginsburg ('The Concept of Authorship in Comparative Copyright Law' 10 January 2003, Columbia Law School, Public Law Research Paper No 03-51, http://ssrn.com/abstract=368481) puts it this way, at p 21:
'reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high quality replicas of works of art.'
In the end the question is one of degree - how much skill, labour and judgment in the making of the copy is that of the creator of that copy? Both individual creative input and sweat of brow may be involved and will be factors in the overall evaluation."
i) Both lists relate exclusively to Nokia models, and all of the models in the FTS List are also in the WYP List. As at May 2006, at least 130 Nokia models were available that were suitable for this type of analysis. The FTS List includes a small sub-set of this population which was generated from models that came by chance to FTS for forensic examination, yet the WYP List includes the same models.
ii) As noted above, in the FTS List, firmware versions are only given for model 6230. The same is true in the case of the WYP List, and the firmware versions listed are the same. (By contrast, a list produced by DC Miller after July 2008 included firmware revisions for almost all models. It also included revision dates, which are absent from all the earlier lists.)
iii) The FTS List has 33 entries (i.e. pairs of addresses) of which 32 also appear in the WYP List. The WYP List has 12 additional entries. Of the 32 common entries, 27 are identical and five are similar. Of the five similar entries, in at least four cases, the differences involve a single digit difference or transposition of two digits (e.g. 018A0000 instead of 01A80000). This type of difference is consistent with human error when manually copying data (either in manuscript or when typing).
iv) FTS' uncontroverted evidence is that three addresses on the FTS List were subsequently discovered to be erroneous. The same errors appear in the WYP List.
Fair dealing defence
"Relevant considerations. Relevant factors to be taken into account in judging whether the dealing was fair have been identified in various cases. None is determinative and the weight to be attached to them will vary from case to case. In particular, the various factors will carry different weight according to the type of dealing. Cases of fair dealing for purposes of criticism, review and the reporting of current events usually raise more difficult problems than cases of non-commercial research and private study. The three most important factors have been identified to be: [Ashdown v Telegraph Group Ltd  EWCA Civ 1142;  Ch.149…]
(1) The degree to which the alleged infringing use competes with exploitation of the copyright work by the owner. This is likely to be a most important factor. …
(2) Whether the work has been published or not….
(3) The extent of the use and the importance of what has been taken. In many cases this will be a highly important factor…"
Liability of the Defendants
Innocence defence to damages
"The effort, if any, expended in determining the PM Abs addresses for particular mobile phones is unrelated to the selection or arrangement of the contents of the PM Abs [Lists]. That effort is effort expended in 'obtaining' the contents of the database, and is effort which counts towards the subsistence of sui generis database right under reg. 13 of the Copyright and Rights in Databases Regulations (which gives effect to Art. 7 of the Database Directive), and not towards copyright."
Liability of the Defendants
Innocence defence to damages
Breach of confidence
"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must have been an unauthorised use of the information to the detriment of the party communicating it."
This statement of the law has repeatedly been cited with approved at the highest level: see Lord Griffiths in Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109 at 268, Lord Nicholls of Birkenhead in Campbell v MGN Ltd  UKHL 22,  AC 457 at  and Lord Hoffmann in Douglas v Hello! Ltd (No 3)  UKHL 21,  1 AC 1 at .
Necessary quality of confidence
Circumstances importing an obligation of confidence
Liability of the Defendants
Summary of conclusions
i) Copyright does not subsist in the PM Abs List; but if copyright did subsist, the Defendants would have infringed that copyright and would not have an innocence defence to damages.
ii) Database right subsists in the PM Abs List and has been infringed by the Defendants.
iii) The PM Abs List was at the material time information confidential to FTS and the Defendants have misused that confidential information.
iv) The claims for database right infringement and breach of confidence succeed in relation to the WYP Lists, but not the Pandora's Box List.