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Stealing Copyright Under The Theft Act?
I was thinking about a piece of coursework I handed in last year for criminal law. One part of the question saw the alleged thief remove an un-published academic paper from a computer and publish it under his name. I couldn't think of any way to impose liability for the theft of the paper apart from arguing that the alleged thief appropriated a chose in action - the copyright - which was theft. However recently my lecturer said that he didn't think this had any merit.
What do you guys think?
What do you guys think?
Oxford v Moss held that ‘confidential information’ had no character as ‘property’ for the purposes of theft. As a result it would seem that the article, being information, may not be property for theft purposes nor, on the facts, could there be said to be any intention to permanently deprive.
However, s. 4(1) of the Act extends to ‘things in action’ which includes copyrights - by definition, a copyright is a property right . Applicable cases have seen some complicated issues raised, mainly that the victim’s chose in action is never actually obtained by the thief – they obtain their own chose in action . If Hilton , which concerned a bank transfer, applies to the present facts, then we can say that while D does not obtain V’s property, he obtains a new copyright in his own name. By relying on Gomez, D can be said to ‘destroy’, or ‘appropriate’, V’s chose in action of respect of the copyright .
However, s. 4(1) of the Act extends to ‘things in action’ which includes copyrights - by definition, a copyright is a property right . Applicable cases have seen some complicated issues raised, mainly that the victim’s chose in action is never actually obtained by the thief – they obtain their own chose in action . If Hilton , which concerned a bank transfer, applies to the present facts, then we can say that while D does not obtain V’s property, he obtains a new copyright in his own name. By relying on Gomez, D can be said to ‘destroy’, or ‘appropriate’, V’s chose in action of respect of the copyright .
jurisprudence
I was thinking about a piece of coursework I handed in last year for criminal law. One part of the question saw the alleged thief remove an un-published academic paper from a computer and publish it under his name. I couldn't think of any way to impose liability for the theft of the paper apart from arguing that the alleged thief appropriated a chose in action - the copyright - which was theft. However recently my lecturer said that he didn't think this had any merit.
What do you guys think?
What do you guys think?
Your lecturer is clearly right, in my opinion. However, there will almost certainly be some illegal act, what about a Misuse of Computer Act offence or diversion of electricity (which, of course, used to be used for computer misuse offences before there was a specific Act)?
For there to be theft there has to be a phisical thing, because it suposes the taking of the thing. Here there is a copyright violation, which in my contry does have a criminal action, and I suppose in the UK there must be some kind of criminal action against it. In the US it's a federal criminal offence. Also if it's confidential information, it's protected by trade secret law.
JCW: There are of course copyright laws to cover this, as does s. 13 of the Theft Act - abstraction of electricity - but I can't see why a bank balance as a chose in action and a copyright as a chose in action should be treated differently.
Anabelle: You don't need a physical thing per se - the Theft Act clearly states that property that can be stolen includes 'things in action', which are not tangible items of property. And not all confidential information is protected by trade secrets laws - the information has to have a certain character - publishing a book for example, as a piece of copyrighted material, does not incur liability under trade secrecy laws.
Anabelle: You don't need a physical thing per se - the Theft Act clearly states that property that can be stolen includes 'things in action', which are not tangible items of property. And not all confidential information is protected by trade secrets laws - the information has to have a certain character - publishing a book for example, as a piece of copyrighted material, does not incur liability under trade secrecy laws.
As far as I know, breach of copyright can result in civil action only (unless there's somehow an element of fraud - but that's a seperate offence).
I guess if you physically stole the copyright papers then that could amount to theft?
I guess if you physically stole the copyright papers then that could amount to theft?
jurisprudence
JCW: There are of course copyright laws to cover this, as does s. 13 of the Theft Act - abstraction of electricity - but I can't see why a bank balance as a chose in action and a copyright as a chose in action should be treated differently.
The answer to that is quite simple, I would have thought. The chose in action (the copyright) has not been stolen in any sense. The owner of the work still owns the chose (the copyright) and can enforce it through the legal process. It is the work subject to the copyright, rather than the copyright itself, that has been appropriated, but copyright is not a proprietary interest over certain property but simply a power.
Draw a parallel with shares. If I own shares in a company, I cannot claim that a person who steals from one of the company's shops has stolen part of my chose in action. I merely have certain legal rights over that property (to claim my share on liquidation) rather than a legal interest in the property.
Of course, by this reasoning, if someone does 'steal' my copyright (that is, the legal title to the right itself) then that would be actionable. But you cannot 'steal' copyright (since it can be transferred only due a certain legal process). I see no reason why, though, you cannot obtain property (copyright) by deception if you were to use a deception to procure a person to transfer their rights to you.
The simple reason why they are treated differently, then, is that the situations are entirely distinguishable. In one, the chose in action itself is appropriated (although cf R v Preddy on the issue of creation of choses) and in the other, the chose remains untouched.
I hope that answers your question (which I now understand!).
True, the copyright chose is never obtained by the thief in the sense that the thieft gains exclusive rights to enforce that chose, however the ratio of Hilton suggests that obtaining the chose is not required.
While transferring a bank balance transfers the prima facie right to sue from the victim to the thief, the victim essentially retains that right in the same way that the orgininal copyright holder retains their right to enforce their copyright - it is a right that can be affirmed in court if the the thief contests the ownership of the chose.
In that sense, then the copyright can be said to be 'touched' - the copyright is specific to that particular piece of work and is, in the eyes of the law, held by the thief and not by the victim. Like the bank balance, there needs to be a determination as to who owns the copyright.
Hilton, if it is construed widely, suggests that actually taking the chose, by transfer or otherwise, is not required for there to be an appropriation. All that is required is that the chose is interacted with in some very minor and intangible way.
I'll admit that this is all pretty weak, but interesting nonetheless.
While transferring a bank balance transfers the prima facie right to sue from the victim to the thief, the victim essentially retains that right in the same way that the orgininal copyright holder retains their right to enforce their copyright - it is a right that can be affirmed in court if the the thief contests the ownership of the chose.
In that sense, then the copyright can be said to be 'touched' - the copyright is specific to that particular piece of work and is, in the eyes of the law, held by the thief and not by the victim. Like the bank balance, there needs to be a determination as to who owns the copyright.
Hilton, if it is construed widely, suggests that actually taking the chose, by transfer or otherwise, is not required for there to be an appropriation. All that is required is that the chose is interacted with in some very minor and intangible way.
I'll admit that this is all pretty weak, but interesting nonetheless.
Onearmedbandit: Yes, that's the classic way of getting around the fact that information cannot be stolen - you go for the medium that the information is contained on. Suprising how often people miss that.
There's a very short article by Tettenborn - 'Stealing Information' or similar - that explains all of this.
There's a very short article by Tettenborn - 'Stealing Information' or similar - that explains all of this.
jurisprudence
True, the copyright chose is never obtained by the thief in the sense that the thieft gains exclusive rights to enforce that chose, however the ratio of Hilton suggests that obtaining the chose is not required.
While transferring a bank balance transfers the prima facie right to sue from the victim to the thief, the victim essentially retains that right in the same way that the orgininal copyright holder retains their right to enforce their copyright - it is a right that can be affirmed in court if the the thief contests the ownership of the chose.
In that sense, then the copyright can be said to be 'touched' - the copyright is specific to that particular piece of work and is, in the eyes of the law, held by the thief and not by the victim. Like the bank balance, there needs to be a determination as to who owns the copyright.
Hilton, if it is construed widely, suggests that actually taking the chose, by transfer or otherwise, is not required for there to be an appropriation. All that is required is that the chose is interacted with in some very minor and intangible way.
I'll admit that this is all pretty weak, but interesting nonetheless.
While transferring a bank balance transfers the prima facie right to sue from the victim to the thief, the victim essentially retains that right in the same way that the orgininal copyright holder retains their right to enforce their copyright - it is a right that can be affirmed in court if the the thief contests the ownership of the chose.
In that sense, then the copyright can be said to be 'touched' - the copyright is specific to that particular piece of work and is, in the eyes of the law, held by the thief and not by the victim. Like the bank balance, there needs to be a determination as to who owns the copyright.
Hilton, if it is construed widely, suggests that actually taking the chose, by transfer or otherwise, is not required for there to be an appropriation. All that is required is that the chose is interacted with in some very minor and intangible way.
I'll admit that this is all pretty weak, but interesting nonetheless.
Yes, I think to the extent of being unarguable, since it fundamentally confuses the chose in action itself, and the 'subject' of a chose in action. Of course, 'appropriation' is the basis of theft (rather than a taking of a proprietary interest, cf the previous offence of larceny) but the appropriate still has to be of the chose in action.
With R v Hilton [1997] 2 Cr. App. R. 445, there was still clear dealing with the chose (the bank balance) as the thief purported to exercise the rights of the owner of the chose by executing a transfer of it by the bank. In your case, the taking of the paper in no way involves any dealing whatsoever with the chose (the copyright). The thief has not purported to transfer the copyright, or purported to grant permission: he has simply breached the copyright. The actual chose has not been touched in any way by the printing of the document.
The problem with your argument is the assertion that 'the copyright... is in the eyes of the law, held by the thief and not by the victim'. That is manifestly incorrect; the copyright has never been divested from the victim (not least since it would take a certain legal procedure to do that). All that has happened is that there has been a breach of that copyright.
The fallacy of your argument can be demonstrated by reference to contracts. Your reasoning would result in many procurements of breaches of contract becoming thefts, since the procurement would 'touch' the contractual rights (the chose).
Also, there are very difficult issues with legal title to a bank debt which is transferred without authority viz some people but with authority viz others; it isn't strictly relevant to this discussion, so I won't discuss it, but it isn't always true that the legal title to the chose (and with it the right to sue) does pass.
I was aware of the danger of confusing the subject with the chose...
Is the copyright chose not specific to the article? If the article is published by the thief, does not the thief negate the original chose and create a new chose. On a true construction of the facts there is no new chose, but until a determination is made, does the thief not have a chose, albeit one that cannot stand against the original author's? There is of course a breach, but if you look at it in terms of general property rights, is there any reason why there can't be two choses in respect of the same article. Hilton states that the original chose need not be touched, but that the creation of a secondary chose that acts to negate its effect can amount to an appropriation.
Is the copyright chose not specific to the article? If the article is published by the thief, does not the thief negate the original chose and create a new chose. On a true construction of the facts there is no new chose, but until a determination is made, does the thief not have a chose, albeit one that cannot stand against the original author's? There is of course a breach, but if you look at it in terms of general property rights, is there any reason why there can't be two choses in respect of the same article. Hilton states that the original chose need not be touched, but that the creation of a secondary chose that acts to negate its effect can amount to an appropriation.
jurisprudence
I was aware of the danger of confusing the subject with the chose...
Is the copyright chose not specific to the article? If the article is published by the thief, does not the thief negate the original chose and create a new chose. On a true construction of the facts there is no new chose, but until a determination is made, does the thief not have a chose, albeit one that cannot stand against the original author's? There is of course a breach, but if you look at it in terms of general property rights, is there any reason why there can't be two choses in respect of the same article. Hilton states that the original chose need not be touched, but that the creation of a secondary chose that acts to negate its effect can amount to an appropriation.
Is the copyright chose not specific to the article? If the article is published by the thief, does not the thief negate the original chose and create a new chose. On a true construction of the facts there is no new chose, but until a determination is made, does the thief not have a chose, albeit one that cannot stand against the original author's? There is of course a breach, but if you look at it in terms of general property rights, is there any reason why there can't be two choses in respect of the same article. Hilton states that the original chose need not be touched, but that the creation of a secondary chose that acts to negate its effect can amount to an appropriation.
The copyright isn't specific to the thing in any real sense. Copyright is a right to restrict (and claim consequent damages/accounts of profits) for certain acts. To see it as connected to a 'thing' is problematic, because it isn't like ownership, a possessory title, a lien or a trust: the property is the copyright (a pure intangible) in itself. If a person reads copyright material and then produces a derivative work, you don't trace a right in the original material through the person to the derivative work and impose some right in rem in the derivative work. There is simply a right - a piece of property in itself - to restrain certain activities.
Looking at it your way (in terms of property rights in the 'article') creates significant problems, because the 'information' (in terms of bits of data on the computer) is not a piece of property that can sustain rights in it. The key point to understanding the problem (in my view) is accepting that the chose (the copyright) is never touched in any way.
This isn't like Hilton where the defendant used (albeit without authority) rights attached to the chose in action (the debt). In that case, it was by purporting to exercise rights attached to the debt that he could be said to have 'appropriated' the chose in action. In your case, there is no exercise of the rights associated with the chose (the copyright) but merely the doing of an act inconsistent with those rights.
In a sense, you must see copyright for what it is: it is a bundle of statutory rights to say 'you are not permitted to deal with information in that way'. D, in your example, does not use that bundle of rights: he does not purport to transfer V's copyright to another person or to restrain a use of the information. That bundle of rights stays exactly as it is (V can still exercise those rights) and D has not appropriated by acting as though he owns those rights (he has simply acted in defiance of those rights).
The phrase "two choses in respect of one article" is a difficult one. You can certainly have two choses which relate to one article (ie: two contracts to sell the same bottle of wine) but they are simply two choses. By making the second sale, you don't 'appropriate' the first contract (a chose). This is simply because there is no exercise, taking or use of that first chose; that is merely a bundle of rights that remains as is (although breached) despite the first transaction. The fact that the bundle of rights relates to a piece of property is neither here nor there; the bundle of rights is property in itself and the theft would have to be of the bundle of rights.
In my view, as long as V retains his bundle of rights and D has not purported to exercise any of V's rights (cf acting in defiance of those rights), there can be no question of an 'appropriation' of the rights.
Thank you JCW, that's clearer now. I have no knowledge of choses in their own right, but now I'll read around them myself over the next few days. You presented a very interesting argument!
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