Michael Hicks appeared for the Claimants (Dr Craig Wright & Ors), instructed by Harcus Parker, in their successful appeal from an order of Mellor J refusing permission to serve a claim form out of the jurisdiction. Arnold LJ ruled that the Claimants had a real prospect of success in establishing that the Bitcoin File Format satisfies the fixation requirement for copyright protection.
Background
In a further development of the ongoing litigation relating to whether the First Claimant, Dr Craig Wright, is the creator of Bitcoin and the claimants in the case are the owners of copyright in the Bitcoin File Format and Bitcoin “White Paper”, the Claimants applied to serve a claim form on Defendants outside of England and Wales. Permission was refused by Mellor J insofar as the claim form advanced a claim for infringement of copyright in the Bitcoin File Format. The reason given in his judgment [2023] EWHC 222 (Ch) was that the Claimants had no real prospect of establishing that copyright subsisted in the Bitcoin File Format, because it had not been “recorded, in writing or otherwise” pursuant to s.3(2) of the Copyright, Designs and Patents Act 1988: the requirement in UK copyright law for “fixation”.
The Appeal
The Bitcoin File Format was defined in the claim as the work “consisting of the structure of each block of the Bitcoin Blockchain […]”, as explained in further detail at [16] – [18] of the Court of Appeal decision.
Arnold LJ expressed doubts as to whether the Bitcoin File Format satisfied each of the requirements for copyright to subsist, but saw no reason to differ from the judge’s assessment that there was a real prospect of success on all requirements save for fixation[1].
As to the latter, Mellor J had not been persuaded that the Bitcoin File Format had been recorded, finding that no relevant ‘work’ had been identified containing content which defined the structure of the Bitcoin File Format.
Arnold LJ disagreed. Having reviewed the legal framework including the provisions of the Berne Convention, TRIPS, the WIPO Copyright Treaty, the Information Society Directive and the associated case law, he concluded that Mellor J’s reasoning confused the work with fixation. The work Dr Wright relied upon, the Bitcoin File Format, had been clearly identified. The question of how and when that work was fixed was a different one. Moreover, whilst the work (i.e., the structure) must be fixed in order for copyright to subsist in it, it did not necessarily follow that content “defining” the structure was required in order to fix it. Arnold LJ held that “[a]ll that is required is that the structure be completely and unambiguously recorded”, noting the requirement to identify subject matter with sufficient precision and objectivity following Levola Hengelo (Case C-310/17).
Dr Wright’s case was that the work was fixed when the first block in the Bitcoin blockchain was written on 3 January 2009, and Arnold LJ allowed the appeal, considering that evidence that third parties have been able to deduce the structure comprising the Bitcoin File Format supported Dr Wright’s case.
The trial to determine whether Dr Wright is the creator of Bitcoin is listed for January 2024.
Dr Craig Steven Wright & Ors v BTC Core & Ors [2023] EWCA Civ 868
[1] Arnold LJ also distinguished the present proceedings from the facts relating to file formats in the SAS Institute body of case law.
