“when and in what form the alleged literary work in the Bitcoin File Format was first recorded, in writing or otherwise”
“4. I devised and created the Bitcoin File Format in the course of writing the code for the Bitcoin System. When the software runs and the hashing problem is solved, the software creates blocks in the Bitcoin File Format which are added to the Bitcoin Blockchain file. 5. The first block in the Bitcoin Blockchain is a special block known as the ‘Genesis Block’. I ran the Bitcoin Software on3 January 2009 (GMT) and created the Genesis Block on that day. It includes the words ‘The Times 03/Jan/2009 Chancellor on brink of second bailout for banks’. (These words are not part of the file format but are simply some of the contents of the Genesis Block). The ‘Genesis Block’ is an anchor value which is unique to Bitcoin. 6. There were issues with the software which took me some days to correct. The second block (now known as Block #1) which is the first ‘mined’ block in the Blockchain was not created until I ran the software on9 January 2009 (GMT). 7. Therefore, the Bitcoin File Format in the form which is on the Bitcoin Blockchain was first recorded on3 January 2009 (GMT) when the software was run as I have described above. The recording was in electronic form on the Bitcoin Blockchain.”
“Article 2 (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. (2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form. … (5) Collections of literary or artistic works such as encyclopedias 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. (6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title. … Article 9 (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. … Article 20 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.”
“Article 9 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. Article 10 Computer Programs and Compilations of Data 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). …”
“Article 1 Relation to the Berne Convention 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. … (4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention. Article 2 Scope of Copyright Protection Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. Article 3 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. Article 4 Computer Programs Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.”
“Concerning Article 4 The scope of protection for computer programs under Article 4 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.”
“(6) The Community’s legal framework on the protection of computer programs can accordingly in the first instance be limited to establishing that Member States should accord protection to computer programs under copyright law as literary works and, further, to establishing who and what should be protected, the exclusive rights on which protected persons should be able to rely in order to authorize or prohibit certain acts and for how long the protection should apply. … (11) 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. 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. 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. …”
“Article 1 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. …”
“(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. …”
“Article 1 Scope … 2.
“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, (b) a computer program, (c) preparatory design material for a computer program, and (d) a database. … (2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded. (3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded. … 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); … Minor definitions 178. In this Part- … ‘writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly.” (a) original literary, dramatic, musical or artistic works, Literary, dramatic and musical works ‘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, (b) a computer program, (c) preparatory design material for a computer program, and (d) a database. … The acts restricted by copyright in a work (a) to copy the work (see section 17); Minor definitions … ‘writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly.”
“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 …”
“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 …”
“In a sense, this was a retrograde step as regards the level of protection accorded under the Convention. However, it was a necessary recognition of the fact that many national laws were unprepared to take the step of abolishing the requirement for fixation altogether, and that to make this mandatory might drive countries out of the Union or discourage possible adherents, such as the USA. The principal reason for retaining the need for fixation is evidentiary: it is hard otherwise to prove the fact of existence of an unfixed work. Likewise, it is difficult to be sure of the scope or content of such a work, and without fixation the protection of such a work may come close to the protection of the ‘ideas’ or subject of that work.”
“128. This category consists of example 23. This concerns a SAS data file format called SAS7BDAT. … The example consists of ‘the SAS source code used to generate files in the SAS7BDAT formats’ on the one hand and 15 identified routines in the WPS source code and their functions on the other hand. As presented in exhibit PAI11, example 23 appears to be an allegation of (presumably indirect) reproduction of unidentified SAS source code. That is also the flavour of Professor Ivey’s evidence in the body of his report. As stated above, however, not merely is the SAS source code unidentified, but also Professor Ivey had not even inspected the relevant source code. There is no evidence that the SAS source code sets out the SAS7BDAT format, as opposed to reading and writing files in that format. 129. Counsel for SAS Institute submitted that this example demonstrated that WPL had ‘copied elements of the SAS source code into the source code of WPS’. In my judgment it shows nothing of the kind. All it shows is that, by examining the SAS System in operation, WPL worked out enough of the format of SAS7BDAT data files to be able to write source code which reads and writes data files in that format. This is precisely what the extract from WPL’s internal wiki exhibited by Professor Ivey as exhibit PAI9 to his report indicated that it did, and precisely what Mr Clemow [a WPL witness] said in his witness statement that he did. The cross-examination of Mr Clemow took matters no further.”
“… cannot affect the possibility that the SAS language and the format of SAS Institute’s data files might be protected, as works, by copyright under Directive 2001/29 if they are their author’s own intellectual creation (see Bezpečnostní softwarová asociace, paragraphs 44 to 46).”
“… counsel for WPL submitted, and I agree, that in [45] the CJEU was merely being careful, consistently with [Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury[2010] ECR I-13971 ], to make it clear that it was not excluding the possibility that the SAS Language might be protected as a work in its own right. In other words, it was simply identifying that as being a separate question. It was not purporting to answer that question, which was not before it.”
“… as was common ground between counsel, it is important to distinguish between the putative work on the one hand and any particular fixation of the work on the other hand. The United Kingdom, in common with many other countries, takes advantage of Article 2(2) of the Berne Convention and requires fixation as a condition precedent to the subsistence of copyright: see section 3(2) of the 1988 Act. In principle, the technical means by which fixation is achieved is irrelevant. Thus, as discussed above, an artistic work may be fixed in the source code of a computer program. But the fixation must not be confused with the work. A printed book is a fixation which may embody a variety of works, for example a literary work (the text) and a series of artistic works (illustrations). These different works are likely to have different authors, and hence different owners and terms of copyright. Thus the fact that one can identify a fixation is a necessary, but not a sufficient, condition for the subsistence of copyright.”
“38. There was relatively little evidence about the SAS data file formats at trial. To the best of my recollection, the only format that was addressed in the evidence at trial was SAS7BDAT (see my first judgment at [128]-[129]). I do not even know what other formats, if any, SAS Institute claims that WPL has copied. 39. The question of whether a data file format such as SAS7BDAT is a work is not straightforward for similar reasons to those that I have given in relation to the SAS Language. 40. Even if it is a work, SAS Institute’s claim in respect of the data file formats raises rather more acutely [than in the case of the SAS Language] the question of fixation. For the reasons given in my first judgment at [23] and [128]-[129], it has not been established that SAS7BDAT is fixed in the SAS Components. It is not clear to me that it is fixed in any of the SAS Manuals either. 41. This claim also raises the question of originality, and in particular whether a data file format is an intellectual creation. For this purpose, elements ‘differentiated only by their technical function’ must be disregarded: … . What is required is something on which the author has stamped his ‘personal touch’ through the creative choices he has made: ... It is open to evidence and argument as to whether data file formats such as SAS7BDAT satisfy this requirement.”
“33. Article 2(a) of Directive 2001/29 provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author’s right to authorise or prohibit reproduction is intended to cover ‘work’. 34. It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. 35. Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation. 36. In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. 37. In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.”
“37. … only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29 …. 38. It should be recalled in that regard that although the European Union is not a party to the Berne Convention, it is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to which it is a party and which Directive 2001/29 is intended to implement, to comply with Articles 1 to 21 of the Berne Convention ... 39. Under Article 2(1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be. Moreover, in accordance with Article 2 of the WIPO Copyright Treaty and Article 9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, … which also forms part of the EU legal order …, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such …. 40. Accordingly, for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. 41. That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.”
“42. The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. 43. Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.”
“54. It remains the case that no relevant ‘work’ has been identified containing content which defines the structure of the Bitcoin File Format. Of course, Schedule 2 to the Particulars of Claim comprises content defining the structure of the Bitcoin File Format, but that is not a relevant ‘work’. Schedule 2 was created for the purposes of this claim and cannot form part of the causative chain between what Dr Wright devised, an alleged copyright ‘work’ and the alleged infringements which were being created as from1st August 2017 . 55. Second, the Claimants have now been given four opportunities to explain, in effect, what it is in the ‘Bitcoin File Format’, as expressed in each block, which comprises ‘content and not just structure’. 56. The Claimants were presented with a possible fifth opportunity during the hearing when I asked Counsel whether, in the light of the discussion which had taken place, the Claimants wished to file any further evidence. As mentioned above, Counsel offered extracts from textbooks which show that third parties have divined the structure of a block in the Bitcoin Blockchain. As also mentioned above, I have assumed that is the case, but it does not assist the Claimants on the key issue in any way. 57. It is most revealing that, despite all these opportunities, the Claimants have not filed any evidence to the effect that a block contains content indicating the structure, as opposed to simply reflecting it. By ‘content indicating the structure’, I mean, by way of a crude example, a flag or symbol in the block which signals ‘this is the start of the header’ or ‘this is the end of the header’, or an equivalent of the sort of content which is found in an XML file format. Whilst I entirely accept that each block conforms to the structure described in Schedule 2 to the Particulars of Claim and is an instance or manifestation of that structure, the absence of such evidence confirms my initial view that, whether one considers the point at which the first, second or subsequent block(s) were written embodying the structure of the file format, nowhere was the structure of Bitcoin File Format fixed in a copyright sense in a material form in any of those blocks. 58. … I am driven to the conclusion there are no overt signs in a block which indicate the structure as described in Schedule 2 to the Particulars of Claim. Akin to the conclusion set out at the end of [128] in SAS No.3 [sic]: there is no evidence that the Bitcoin File Format is set out in any part of the software or early blocks written to the Bitcoin Blockchain, as opposed to the Bitcoin Software simply reading and writing files in that format.”