Intellectual property theft
The Law 360 service (to which, as the news it conveys is usually of little interest to anyone outside the United States, I have only a free subscription which means I only see the opening words of the articles) reports:
A California federal jury on Tuesday cleared two former Applied Materials employees of criminal charges alleging they conspired for months to steal proprietary LCD chip technology trade secrets …
Somewhere in my library, which contains a ridiculous number of tomes of doubtful value and advanced age, I have one entitled “Copyright Theft”. I recall that the author spent some time picking my brain while he was writing it (in my days working for the Society of Motor Manufacturers and Traders and the Confederation of British Industry my brain was often thought worth picking) but had I known what the title would be I might have demurred. Intellectual property theft is a concept that appeals to journalists not because they are lazy or ignorant (although those possibilities should not be excluded) but because it lends itself to attention-grabbing titles, headlines and opening sentences, but it is a phrase that lawyers must avoid.
The Applied Materials case was, however, about trade secrets rather than copyright (or any other form of intellectual property strictu sensu). Which actually makes it worse. It appears to be possible to steal intellectual property rights: s.4 of the Theft Act 1968 defines “property” as “any property including money and all other property, real or personal, including things in action and other intangible property”. Whether copyright (in particular) is a chose in action has been discussed at some length in the past1, and whether all property must be either a chose in possession or a chose in action remains debatable (s.30(1) of the Patents Act 1977 specifically stating that a patent, and an application for a patent, is personal property without being a thing in action, suggesting that there is some tertium quid between the two despite the dictum of Fry LJ in Colonial Bank v Whinney2).
Theft of intellectual property, or of confidential information or trade secrets, is not an area where you will find much case law. In fact, as far as I know there is only one case: Oxford v Moss3 in which a civil engineering student at Liverpool University4 got hold of a proof of his forthcoming exam. He was prosecuted before Liverpool Magistrates, where the case was dismissed on the basis that he had not permanently deprived the University of any property - that the law on breach of confidence gives a right over property, not a right of property, which I think is a rather nice distinction. On appeal to the Divisional Court, Smith J and Wien J both agreed with the stipendiary magistrate that there was no property right in confidential information such that a charge of theft could lie. (What happened to Mr Moss history does not record, at least not as far as I can see.)
However, that is not the end of the story. The court disposed of the matter by holding (correctly, IMHO) that confidential information is not property, but Professor Card in his textbook on criminal law suggests that a different approach should have been taken - in effect, that the concession in Oxford v Moss that there was no intention permanently to deprive the university of its property was wrong.
Although confidential information in an examination is not property and cannot be stolen, if a student surreptitiously borrows a college examination paper a week before the examination, intending to copy it and then to return it, his appropriation of the piece of paper will be regarded under s 6(1) as done with the intention of permanently depriving the college authorities of it (the paper). The borrowing is clearly for a period and in the circumstances making it equivalent to an outright taking or disposal because, if the paper is returned as intended, all its goodness and virtue will have gone.5
Having started this note with a case in California, I must add a couple of important points. First, the applicable law in California (whether federal or state) might well make it an offence to steal trade secrets, in which case it would differ from our law (even after the implementation of the Directive a couple of years ago). Second, there was alleged to be a conspiracy too (although the jury did not find one), which could lead to a charge in this country in similar circumstances. And third, it looks very much as if the accused in the California case had indeed stolen documents containing the trade secrets, which makes it a much easier case than Oxford v Moss.
But in any case, remember that, if you feel tempted to refer to something done to intellectual property (or confidential information) as “theft”, think very hard before doing so.
Spencer Brodhurst, Is Copyright a Chose in Action? (1895) 11 L.Q.R. 64, and Charles Sweet’s rejoinder in the same volume of that review at page 238.
30 Ch D 285, quoted at the beginning of the Brodhurst article noted above.
[1979] Crim LR 119, https://swarb.co.uk/oxford-v-moss-qbd-1978/.
The Oxford in the case name was nothing to do with the university of that name but Kenneth Oxford, the Chief Constable for Merseyside.
Card, Cross and Jones: Criminal Law 16th Ed., Reed Elsevier, 2004 at 9.67 (p405), quoted at https://en.wikipedia.org/wiki/Oxford_v_Moss: the latest edition of Prof Card’s work is the 22nd edition, published in 2016, but I have not had an opportunity to consult it so have to place my faith in Wikipedia, which is not something I generally recommend - start with it by all means, but always verify!