UK: Copyright Infringement: Cracking The Code

Last Updated: 26 June 2007

Vanessa de Froberville, Commerce & Technology Group, Lawrence Graham LLP

It has long been said that copyright protects the expression of an idea, rather than the idea itself. We have seen this in practice in two recent Court of Appeal cases which have considered whether copyright was infringed where the underlying theme or idea of a piece of work had, allegedly, been copied. Much has been made of these cases in the news, but what did they decide and have they changed the law?

In general terms, copyright is infringed where someone copies all or "a substantial part" of a copyright work. This can be fairly straightforward to prove in some cases, such as where a book has been photocopied or source code in software has been duplicated. In other cases, though, the alleged copier may argue that what he has ‘copied’ is too abstract either to qualify as a copyright work in its own right or to amount to the copying of "a substantial part".

Does copyright protection extend to the ideas and themes behind copyright works: the ‘look and feel’ of a website; the output of a computer program?; the plot or characters of a novel?; the structure, architecture or functionality of a computer program?

The Nova Productions case

Our first case is Nova Productions v Mazooma Games (2007). Nova designs, makes and sells arcade video games. One of its games, called ‘Pocket Money’, was based on the game of pool. The year after Pocket Money was launched, two of Nova’s competitors did something similar; Mazooma brought out a game called ‘Jackpot Pool’ and Bell Fruit Games launched ‘Trick Shot’.

Nova claimed for copyright infringement against Mazooma and Bell, arguing that they had copied a series of frames (an animation sequence) from Pocket Money as well as the design notes and the computer program underlying the game. Nova did not, however, argue that Mazooma and Bell had copied the Pocket Money source code; but instead argued that copyright in its computer program had been infringed by the copying of the outputs which appeared on the screen.

The Court decided in favour of Mazooma and Bell, saying in particular that:

  • although each individual frame of the Pocket Money game attracted separate copyright protection, there was no additional copyright protection in a series of frames (ie, the animation sequence as a whole); and that,
  • the copyright in Nova’s design notes and computer program had not been infringed because, whilst the Court believed that features of Nova's games had inspired Mazooma's and Bell’s games, these features were too general to amount to a substantial part of the game.

Importantly then, the Court’s view was that it is permissible to make a computer program which emulates another program as long as it does not copy the program code or any of the program's graphics. The ideas behind a computer program – including the preparatory design work – should, then, be treated in the same way as the ideas behind any other copyright work: they should not be afforded copyright protection.

The Da Vinci Code case

Two weeks after the Nova Productions case, the Court of Appeal reached its decision in Michael Baigent and Richard Leigh v The Random House Group Limited (2007). Messrs Baigent and Leigh had claimed copyright infringement against the publisher of Dan Brown's novel The Da Vinci Code (DVC), arguing that the novel infringed the copyright in their non-fiction book, The Holy Blood and The Holy Grail (HBHG), because DVC had substantially copied the central theme (comprising 15 elements), theories and ideas of the HBHG and used them as the basis of its own central theme.

Dan Brown admitted in court that he had used the HBHG as a research source for his own book, but stated that it was only one of a number of sources from which he had gleaned ideas.

The Court of Appeal decided in favour of Random House and, in so doing, confirmed that copyright protects only the expression of ideas, not the ideas themselves. In particular the Court held that, although the DVC may have used some of the elements of the central theme of the HBHG, this did not amount to the copying of a substantial part because what had been taken from the HBHG was too abstract or generalised to qualify for copyright protection. In other words, the generalised propositions taken from the HBHG were ‘merely’ ideas rather than the expression of ideas.

Where do these cases leave us?

Clearly, both the Nova Productions and the Da Vinci Code decisions will be particularly interesting to the software and publishing industries, but the cases should also have wider application. Both emphasise that copyright is a double-edged sword for authors, software designers and others: in having the freedom to ‘copy’ ideas, authors and designers are given greater scope for creativity; but at the same time, they may feel, their own works are potentially given less protection than they would like.

Neither of these cases has established any ground-breaking legal principles. But by simply confirming the law as it already stood they have also shed light on the fact that copyright law still has its grey areas: the Copyright, Designs and Patents Act 1988 refers to copyright infringement including the copying of all or "a substantial part" of a work, but does not define the term "a substantial part" or indicate what factors are relevant in any attempt to define it.

One of the Judges in The Da Vinci Code case offered a six-point non-exhaustive checklist for copyright infringement:

  1. What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying.
  2. What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence of access, it will not be possible to prove copying.
  3. Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work?
  4. If the defendant argues that no such use was made, what is his explanation for the similarities between the alleged infringing work and the original copyright work? Are they, for example, coincidental? Or are they explained by the use of similar sources?
  5. If use was made of the original copyright work in producing the alleged infringing work, did it amount, in all the circumstances, to "a substantial part" of the original work?
  6. What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as "a substantial part" of the original work?

Even assisted by this checklist, how can you tell whether what you have created (or are seeking to copy!) is an idea or the expression of an idea? And how can you tell whether what someone has copied is "a substantial part" of your copyright work? Where is the dividing line to be drawn? The answer to these questions remains open and the Courts continue to make their decisions on a case-by-case basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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