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< Contents ERCIM News No. 53, April 2003


News about legal information relating to Information Technology from European directives, and pan-European legal requirements and regulations.

The recent case of Sony Computer Entertainment v Paul Owen & Ors appears to have established the right of copyright owners to use copy protection technology in their software, and manufacturers/distributors of devices designed to circumvent this protection can be sued for infringement, even if those devices have other lawful purposes.

Sony embedded a code into its PlayStation 2 games which restricted read access through SONY consoles. Additionally the code was customised according to the regional market of sale, ie, Japan, US or Europe. The defendant imported a chip device known as "Messiah" which when inserted into the PlayStation 2 could circumvent the copy protection and by-pass these regional codes. The defendant argued that the device could be used for a number of lawful purposes, such as providing back-up copies in the event the original CD became damaged or destroyed. The Judge disagreed and held that copyright is territorial and that games exclusively licensed to a particular country cannot lawfully be imported for use in another without the copyright holder's permission. The license of a Sony games holder covered playing the game on a particular disk and console and was not for the purpose of making back-up copies for normal use.

This ruling is in contrast to the general rule established by the House of Lords in 1988 which held that selling high speed tape copying equipment did not breach copyright, since the equipment could be used to copy tapes in many other ways.

Defamatory Statements
An Australian High Court has ruled that the Dow Jones can be sued in Australia for an article about an individual which it published on a server in New Jersey, USA, on the basis that the individual's reputation in Australia had been damaged. This could open up a way for any international new agency to be sued in the Australian courts, even if the individual is not resident in Australia. All they have to prove is that they have a reputation there to defend. If this ruling is copied in other countries, it could open a flood-gate of potential litigation for on-line publishers who could be sued in every country in which a defamatory article is read on-line if they are unable to prove that the article is legal or could be justified. Publishers would have to adopt the standard required by each jurisdiction in which their on-line material could be accessed, even though there would be differing standards of evidence and different defenses. If this were to extend to newspaper publishers it may result in a withdrawal of publications rather than facing the potential of liability everywhere the web can be accessed.

Domain Name Dispute
WIPO has ruled that domain names registered in "bad faith" must be given up. Robbie Williams brought the case against Howard Taylor, who registered the domain name but pointed it to the website of the rival band Oasis. The Dispute Resolution Panel found that the domain was registered in "bad faith" on the basis that it was not the "action of a fan, but rather the action of someone who wished to provoke the Complainant". The judgement reinforced the rights of celebrities and businesses to their intellectual property and is a warning against the malicious online use of trademarks in an infringing act.

by Heather Weaver,
CCLRC, Tel: +44 1 235 446151,