Friday 4 March 2011

Phone hacking and copyright

Hugo at the 1709 blog asks a question about a recent case involving 2 of those who may have been victims in the News of the World phone hacking affair (as wikipedia calls it). Before I try to answer the question, some background.

From information obtained from the Metropolitan Police, Andrew Gray and Steve Coogan both suspected that their voicemail had been accessed by Glenn Mulcaire, the private investigator at the centre of the affair. They sued him — apparently for breach of confidence.

The claimants felt that the Mr Mulcaire's defence left a lot more questions unanswered. For example who had instructed him to intercept voicemails; to whom had he passed on the information; and who else had he been targeting. In order to press him further they each made a request for information asking him a number of questions which, unsurprisingly, he did not appear to wish to answer. In order to resist answering the claimants' requests, Mr Mulcaire relied on the common law right not to be required to answer questions that might incriminate oneself.

The right, known as the "privilege against self-incrimination" is not an absolute one. There are a number of statutory exceptions to it. For example section 31 of the Theft Act 1968 prevents someone from relying on the privilege in proceedings for recovery of property (where things they say might well implicate them in a charge of theft). In a similar manner, section 72 of the Senior Courts Act 1981, lifts the privilege in "proceedings for infringement of rights pertaining to any intellectual property or for passing off".

The phrase "intellectual property" means different things to different people and is much misused. There is no single statutory definition either. I found it interested to read that the court was shown a sample of 20 different enactments where "intellectual property" is defined in different ways and for different purposes and, in the Income Tax Act 2007, in three different parts of the same act. In section 72 it is defined thus:

"intellectual property" means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property;

Now the defendants contended that "commercial information" meant only commercial information which was protectable as intellectual property (for which see the other items in the list). The claimants (correctly in my view) said this didn't make sense — obviously what was meant was an extended definition to include "normal" intellectual property of the kind we are used to talking about such as copyright but extended to cover things that would normally not be treated as intellectual property, such as commercial information.

Mr Justice Vos agreed. The defendant lost his privilege and the claimants were allowed to ask some of their questions. Others, the judge thought, were not strictly relevant and constituted "a fishing expedition" (as lawyers call it). An earlier and very similar case, this time involving Nicola Phillips as the victim, had already been decided in the same way and headed to the Court of Appeal. The hope is that all three cases will be joined on appeal and a decision given.

Given how topical phone hacking has been, and the fact that many readers of this blog are involved in industries where confidential information could be intercepted wrongly, I thought this was an interesting case to talk about.

Now to Hugo's question. He asks the question that may be in some of your lips: why didn't the claimants bring a claim for infringement of copyright? Then there would have been no doubt about the application of section 72 and no need to have the argument in the first place. He asks:

Could the claimants simply have relied on the argument that Mulcaire had in any case infringed copyright in sound recordings by recording and transcribing the voicemails? Copyright in sound recordings is owned by their ‘producer’, who is ‘the person by whom the arrangements necessary for the making of the sound recording are undertaken’. Would this be Steve Coogan and Andrew Gray – or would it be Vodafone?

Note that we aren't interested in copyright in the words that were recorded on the victims' voice mail. Even if they qualified for copyright protection — one assumes that "hi, its me" probably does not, whereas something with more substance probably does — the person who left the message would be the author of the words and therefore the copyright would belong to the caller or their employer.

Copyright does protect sound recordings, though for a shorter period than copyright in literary, musical or dramatic works. As Hugo points out, section 9 of the Copyright Act makes the "producer" of a sound recording its "author" (and therefore potential first owner of the copyright) and section 178 gives us the definition.

The nearest authority I can think of is A&M Records v Video Collection International [1995] EMLR 25 which concerned the ownership of an arrangement of "Let's Face the Music and Dance" created for Torvill and Dean's 1994 competition entry. The skater's agent asked a conductor to do the job. He found an arranger, paid for an arrangement of the work suitable for the skaters and then conducted it in a studio he had hired with an orchestra he had put together. The court found that while the conductor had clearly made the recording, it was the agent who had made the "arrangements necessary for the making of the sound recording". I thin this indicates that the courts take a high level view of "producership" and so it would be Mr Gray and Mr Coogan who made the arrangements and were the "producers" even if everything else was done by their mobile telephone company.

But wait, the story doesn't end there. There's no point asking whether something is protected by copyright, without also asking whether there has been infringement. In this case, if Mr Mulcaire had transcribed the telephone conversations, rather than just listened to them and made notes of the facts contained in them, would he have "copied" them? We are all used to the extended definition that section 17 gives to copying of a literary, dramatic, musical or artistic work, which includes "reproducing the work in any material form", but there is no such extended definition for sound recordings. To transcribe a sound recording is not to "copy" it since no new sound recording is made.

So, Mr Mulcaire might have infringed the copyright in the words recorded but that copyright didn't belong to Messrs Gray and Coogan. They probably did own the sound recording copyright, but that wasn't infringed. Their lawyers obviously did know what they were doing (as we suspected) in only suing for breach of confidence. If there's a moral here its that having multiple copyrights in the same "thing" makes for a more complicated analysis.

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