Intellectual Property And Technology Update

• Ideas are Fair Game for Digital Copiers
• Taking the Mickey Now Fair Game

Recent decisions out of the UK have clearly shown that as long as the source code and graphics are not reproduced, general ideas and structures behind computer games and programs can be copied. The decision involving Nova Productions Limited upholds an earlier High Court ruling which dealt with various computer games that simulate pool. The position in Australia under the Copyright Act is not dissimilar to that in the UK in relation to ideas not being protected by copyright, because copyright does not protect general ideas – only the material expression of those ideas.

Relevantly, the judgment noted that "merely making a program which will emulate another but which in no way involves copying the program code or any of the program's graphics is legitimate".

The case involved a pool game called "Pocket Money" which was produced by Nova Productions. The other games involved were "Jackpot Pool" produced by Mazooma Games and "Trick Shot" produced by Bell-Fruit. Although Nova made no claim in relation to the source code being infringed and did not allege that graphics had been copied, they did claim that the other developers had infringed its copyright by taking various elements from "Pocket Money" and using them in the allegedly infringing games.

Nova also based its claim on an argument that the imagery used in its games had some additional right of protection beyond the basic copyright attaching to individual images. In particular, it made these claims in relation to the use of a power bar that gamers used to assess how hard they were hitting the ball and also in relation to the method for controlling the queue.

In the ruling, it was stated:

"Mr Howe invited us to find that there was in effect a further kind of artistic work, something beyond individual freeze-frame graphics. This was said to be because there is a series of graphics which show the "in-time" movement of queue and metre.
So, it was said that what the defendants had done was to create a dynamic "re-posing" of the claimant's version – one in which the detail of the subjects had changed, but an essential artistic element of the original was carried through to the defendant."

The court however did not accept Mr Howe's invitation to adopt his reasoning. It stated:

The copying of ideas, however, is not quite that black and white in most cases. Even a certain amount of copying the material expressor of ideas is permitted provided it is not "substantial". The judgment also drew a distinction between an idea that is "sufficiently general" and one that is "detailed". Copying a sufficiently general idea will not infringe, but if the idea and the copying is sufficiently detailed there may be an infringement.

It is in this general nature of the ideas that were copied where Nova failed.

There are good reasons for the protection which is offered to intellectual property, such as copyright. If creative people were not able to protect the product of their creative output there would be little incentive to be creative in the first place. In fact there would be significant disincentives and on public policy grounds that is undesirable.

The Court of Appeal in the Nova Productions case, however, found that not only is the protection of general ideas not supported by the Copyright Act, it "… would become an instrument of oppression rather than the incentive for creation which it is intended to be".

It is a timely reminder for those taking inspiration from others as to the extent to which that inspiration can go before it becomes copying. As with so many things involving questions of copyright infringement, it is a question of degree and applying arbitrary rules of thumb is unlikely to keep you in the game.

Brisbane-bred animated Indian Boy Band, Boymongoose, held back on releasing a CD in Australia in the lead up to Christmas 2006 because it contained several songs that parodied copyrighted tunes.

Some songs included a quirky Indian themed Christmas carol, "The 12 Days of Christmas", where on the first day of Christmas "my true love gave to me, a totally insufficient dowry." Following that were 2 nosey in-laws, 3 butter chickens, 6 IT graduates, 7 Eleven workers, 9 telemarketers and 12 cricket ball tamperers.

The Boymongoose carol and accompanying video was posted on YouTube, a popular US video sharing website, and since then over 1.2 million people have tuned in to listen to the song and have given it a popularity grading of 4 stars out of a possible 5.

Although the track was a huge hit on the US site, its parody of the well known Christmas carol could have infringed musical copyright in Australia if it had been published here prior to 11 December last year.

The reason for this? You might think that Australia, as a nation renowned for taking the mickey out of serious topics and people, would have lead the way in excusing satire and parody from the realm of copyright infringement, but it has only been since 11 December 2006 that we have come into line with the US, the UK and Europe in relation to specifically permitting parody and satire of copyrighted works.

The Copyright Amendment Act 2006 has changed our position and makes a range of major amendments to the Copyright Act 1968 including the introduction of two new exceptions allowing fair dealing with a literary, dramatic, musical or artistic work or an audio-visual item for the purpose of parody and satire. The specific exception for "satire" found in our legislation is not paralleled in other countries.

The exceptions will cover use in the commercial media or other commercial settings and so they are very relevant for advertisers, not just musicians, film makers and others traditionally in the parody and satire business.

There is no definition of "parody" or "satire" provided in the amendments so the terms will have their usual meaning, subject to the rulings of the courts.

The dictionary defines them this way:

parody (noun) 1. a humorous or satirical imitation of a serious piece of literature or writing.2. the kind of literary composition represented by such imitations. 3. a burlesque imitation of a musical composition. 4. a poor imitation; a travesty.

satire (noun) 1. the use of irony, sarcasm, ridicule, etc in exposing, denouncing, or deridingvice, folly etc. 2. a literary composition, in verse or prose, in which vices, abuses, follies etc are held up to scorn, derision, or ridicule. 3. the species of literature constituted by such composition.

However, existing provisions of the Copyright Act relating to Moral Rights, particularly the right of an author to prevent derogatory treatment of relevant works, must still be considered.

Derogatory treatment will include anything which results in a material distortion, mutilation or material alteration to the work that is prejudicial to the author’s honour or reputation. If the use of the original copyright work were found to infringe the author’s right of integrity, the user must show that it was reasonable in all the circumstances to subject the work to such treatment.

Relevant considerations provided by the Copyright Act will include the nature of the work, the purpose for which the work is used and the manner and context in which the work is used.

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.