This expected decision that Dan Brown had not plagiarised continues the recent line of unsuccessful copyright infringement cases over the expression of general ideas.
28 March 2007 saw the Court of Appeal confirm that Dan Brown’s code and conspiracy thriller ‘The Da Vinci Code’ did not infringe copyright in a book that was used as research for his novel. The claim had been brought by two of the authors of ‘The Holy Blood and the Holy Grail’, a 1982 work described by them as historical conjecture on the idea that Jesus and Mary Magdalene had a child together and that their bloodline continues today.
Da Vinci was the latest in a spate of recent cases addressing the thorny issue of non-classic copyright infringement. This is not the traditional copying of for example, written language, code or graphics but the more nebulous idea of taking of a theme, format or structure, often described as the "look and feel" of the copyright work. Whilst copyright does not protect an idea, it can protect its expression. The difficulty, as identified in Da Vinci, is in identifying what side of the line the expression of an idea in a theme, format or structure lies (i.e. protectable or not). Whilst it was found that Dan Brown had certainly based parts of his novel on material in the earlier book, what he had taken amounted to "general propositions" too abstract to qualify for copyright protection and that were not the product of the application and skill and labour of the authors.
Other recent cases on the same issue in other industry sectors have included IPC Media Ltd v Highbury Leisure Publishing Limited [2004] EWHC 2985 (Ch) (design elements in Ideal Home style magazine), Navitaire Inc v EasyJet Airline Co and Another [2004] EWHC 1725 (Ch) (an electronic flight reservation system that was claimed to have the same look and feel as a version previously licensed) and the recent Court of Appeal decision in Nova Productions Ltd v Mazooma Games Ltd and Ors [2007] EWCA Civ 219 (ideas and features in a pool-themed video arcade game). The claims failed because the concepts claimed to have been taken were at too general a level of abstraction to amount to the required substantial part of a copyright work. Warning was also given against looking at the alleged similarities divorced from the numerous and important differences. Such an approach can create an incorrect impression of copyright infringement.
Another field in which the issue has relevance is television formats. In 2004 the global formats industry was valued by the industry association body FRAPA at €2.4 billion. However, despite the clear recognition and value given to such rights there has been little case law (the Pop Idol/XFactor dispute having settled in 2006) to provide guidance on the English courts approach to protecting formats.
Whilst the claims in Da Vinci and the other cases have failed on their facts, they have provided valuable insight into the precision with which parties must plead their case – by clearly identifying what concepts or expressed ideas in the copyright work are alleged to have been taken and showing that what has been copied amounts to a substantial part of the copyright work, taking into account any numerous and/or important differences that there are between the two works.
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