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Right of Repair as a Copyright Defence
In Mars Ltd v Teknowledge Ltd ChD (Times June 23, 1999), Justice Jacobs once again rode bare back, and roughshod over and through intellectual property and information technology law. He would not see it that way.
Mars (M) use vending machines which can distinguish between the different coins placed in them. This now uses sophisticated electronics, supported by computer software and algorithms. Teknowledge (T), had reversed engineered earlier versions of the mechanisms. When Mars introduced a new system which was more flexible, and re-programmable. They protected their table of measurements with encryption. Despite this encryption, T again reverse engineered the software. M sued under two headings: they claimed copyright infringement and breach of confidence.
T admitted the copyright infringement. They copied the database of factors used by the software algorithms in measuring the and identifying the coins. This was in breach of the new database right. There was infringement of the copyright in the data structures and in the software itself.
T claimed to have exercised a right of repair. In industrial design law it was a defence to a claim for breach that having purchased equipment an owner had a limited right to reverse engineer the product, in order to be able to repair it without having to go back to the monopoly supplier. Jacobs J pointed out that the Copyright Act of 1988 reduced the importance of industrial design rights significantly. He acknowledged however that a similar right might apply to the general law of copyright. He found that, to establish such a defence of the right of repair, a Defendant would have to show that no "right thinking member of society" would quarrel with the use asserted. He found that that was not present in this case.
The second limb of the case regarded the question whether the material was confidential. M argued that by encrypting the material this had on itself been a sufficient indication that was sent was sent in confidence. Jacob rejected this (though the Times Report is insufficiently clear as to just how or why) and held that the material had not been sent or received in confidence. Mr. Justice Jacob said that the implied potential right of 'self help' repair was inconsistent with the material being received in confidence.
He went on to say that the standard to be applied to assess whether a duty of confidence applied was to ask whether any reasonable man standing in the shoes of the Defendant should be expected to realise that material was received in confidence.
We find it perhaps particularly uncomfortable that he should in the same judgement prescribe both a "right thinking man" test and a "reasonable man" test. Is a right thinking man necessarily reasonable? This appears to invite confusion and no doubt litigation.
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