English copyright law does not protect ‘ideas’ but the ways in which these ideas are expressed. This was established in Harman Pictures NV v Osborne (1967) and recently affirmed in the case involving the Da Vinci Code novel, Baigent and Leigh v The Random House Group (2006).Where the work has been literally reproduced there can be no question of copying. However, difficulty arises where use is made of subtle aspects of style, commonly referred to as ‘non textual’ copying. The impact that copyright law has had on the computer industry and internet use has also led to much discussion about the effectiveness of the law in this dynamic and ever changing area. The courts, who see the matter as being one of degree, continue to adopt a narrow perspective on what constitutes infringement of copyright.
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The Copyright Designs and Patents Act 1988 aims to protect work in the following categories: literary, musical, dramatic, typographical arrangement and artistic. The Copyright Computer Program Regulations 1992 included computer programs within the list of literary works along with books and song lyrics. The protection afforded by the Act includes prohibition against any work in the above categories being copied, adapted or distorted without the consent of the copyright owner.
Based on s16 of the CDPA 1998 the court has formulated the following test to establish whether there has been an infringement of copyright. Firstly, the work for which copyright protection is being claimed must be clearly identified and established as original. Secondly there must be evidence that this original work has been copied. Thirdly, if the work has been copied, then the courts must decide whether a substantial part of the work has been reproduced.
This test was outlined by Jacob J In Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd (1994). The defendant created a computer accounting package and licensed it to the claimant. Together, they later marketed the package as (ADS) under the company name PK Ltd where the defendant was the sole employee and Managing Director. The defendant then left the company and joined a competitor as a consultant. There he wrote a programme called ‘Unicorn’ designed to compete with (ADS). Later the Claimants claimed the Unicorn was developed from (ADS) and therefore infringed their copyright.
The court held that (ADS) was a compilation and that copyright existed in the individual programs, their various modifications as well as the whole suite. On comparing Unicorn and (ADS) there appeared to be overwhelming evidence of copying. The latter was an enhancement of the former and not an independent creation. In the absence of independent evidence similarities were due to copying as opposed to the defendant’s individual programming style. The striking similarities in the interaction of individual components in both packages caused the court to conclude that the ‘substantial part’ arm of the copyright infringement test had been satisfied. The copyright in the whole (ADS) package as well as the individual copyrights had been infringed.
In arriving at his decision, Jacob J provided some guidance on general and detailed ideas rejecting the analysis in the earlier case of John Richardson Computers v Flanders (1993) where the American model for assessing infringement was adopted. He held that this was an incorrect approach which would lead to unnecessary complications.
‘For myself I do not find the route of going via United States case law particularly helpful. It is likely to lead to [the] over citation of United States authority based on a statute different from ours. In the end the matter must be left to the value judgment of the court’
He dissented from the view held by Judge Baker in Total Information Processing Systems Ltd v Daman Ltd (1992) and was of the opinion that the table of contents of a novel could be compared to the data division component of a computer programme. They could both be integral to the success of the work and sufficient to constitute a detailed idea. They could also constitute a substantial part of the work depending on the skill labour and judgement involved their compilation.
In deciding whether a substantial part of a work has been copied one must look at the words of a novel and source code of a computer program as well as other factors such as, the plot of a novel and general structure of a computer programme. He held,
‘I therefore think it right to have regard in this case not only to…”literal similarities” but also to … “program structure” and “design features’
Later on in his judgment he questioned whether copyright subsisted in the ‘design features’ of the programme as highlighted by the plaintiff. In any event he was of the opinion that even if they could be afforded copyright protection the ideas were not detailed enough to form a substantial part of the work.
‘We are here at a level of generality where there is little of the programmer’s skill, labour and judgment. Even if the set were copyright, the mere taking of those functions would not be an infringement-it would be the taking of a mere general idea or scheme’
In relation to the contention that if there is only one way of expressing an idea that way cannot be subject to copyright, Jacob J held that this was an error and copyright could still exist. Again dissenting from the opinion of Judge Baker in Total he submitted that Kenrick v Lawrence (1890) was not authority for this proposition. In the Kenrick case the issue was whether copyright existed in the picture of a hand showing voters how to vote. He held that this was an idea and the decision in this case is authority only for the proposition that there is no copyright in an idea as a different picture displaying the same idea would not constitute infringement.
Speaking directly about general and detailed ideas, Jacob J asserted that in relation to all work,
‘The true position is that where an “idea” is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the “idea” is detailed, then there may be infringement. It is a question of degree’
It is therefore important to assess how the courts have set out to separate the expression of the idea in detail from the general idea itself. It seems that in the former, attention is given to finer details of the work. In the final analysis, a balancing act must be performed to protect the author of the idea and encourage literary and technological innovation.
Over the past decade there have been many cases involving the protection of computer source and object codes much like an author would seek to protect the words of a book. In John Richardson Computers v Flanders the courts extended the concept of an idea to include user interfaces stating that the way a program is used and responds to a user should also be copyrighted. Here the plaintiffs claimed that the defendants had copied the ‘look and feel’ of their computer software developed for the pharmaceutical industry.
However as computer use became more widespread courts had to reconsider copyrighting ‘look and feel’ or ‘business logic’ of programs. This was highlighted in the case of Navitaire Inc v Easyjet Airline Co Ltd (2004) where Navitaire claimed that Easyjet online ticketless booking system eRes was a copy of their original programme, Openres. Navitaire owned the copyright in the source code for the computer programme and did not allege at any time during the case that this was copied.
The allegation centred on the fact that eRes was almost indistinguishable from OpenRes in relation to the ‘user interface’ or interaction between user and programme. The Plaintiffs alleged non textual copying in relation to the ‘look and feel’ of running OpenRes, user commands to achieve particular results and screen reports in response to user instructions. Copying was alleged of the whole of OpenRes or the various modules that make up the system.
What was further considered in this case was whether there could be an infringement where two computer programs produce the same results but the author of the latter had no information of the former apart from the end function. In this scenario the question arises as to whether the general idea alone has been copied or something more detailed. No infringement was found in Navitaire and it was held that to side with the plaintiffs in this case would be “an unjustifiable extension’ of copyright protection”. Simon Stokes in The development of UK software copyright law notes,
‘In light of Navitaire, the chances of a successful software copyright “look and feel” case appear limited unless there is a clear misappropriation of a copyright work… or underlying source code.’
In Nova Productions Ltd v Mazooma Games Ltd (2006) the restrictive approach in Navitaire was reaffirmed. Here the defendant produced a computer programme based on the game of pool that was similar to that of the plaintiff although he had no access to the original source codes. Again the plaintiff here alleged that although the computer programme language or sources were not copied, the user interface or ‘look and feel’ of the programme was. It was held that parts of the computer programme copied were of a “high level of generality or abstraction”, common in the industry and did not form a substantial part of the program itself. The court agreed with the Navitaire judgement and stated,
“merely making a programme which will emulate another but which in no way involves copying the programme code or any of the program’s graphics is legitimate”
The present state of the law is that copying the end result of a computer programme in itself does not constitute infringing its copyright. In both Navitaire and Nova, the court included in its judgement the provisions of the Software Directive recitals 13-15. The Directive provides that, the expression of a computer program is protected but ideas and principles which underlie any element of a program or its interfaces are not. Many believe that spells bad news for creators and brand owners. In the European Intellectual Property Review, Peter Nunn states,
‘As the law currently stands, non-textual copying claims in the software field appear doomed: ideas and user interfaces can seemingly be freely copied’
It would be useful to consider the courts approach in other cases regarding protected work. In the case of Green v Broadcasting Corporation of New Zealand [1989] the issue of general and detailed ideas were also discussed in relation to a television broadcast. Here the British presenter Hughie Green sought to sue a New Zealand television station for copyright infringement of the format of his game show, Opportunity Knocks. The English Privy Council however rejected this attempt to claim that the format was a dramatic work, asserting that there was no copyright in an idea and the format as presented was ‘conspicuously lacking in certainty’.
This has led to difficulties in the television industry in relation to protecting various unscripted game show formats however unique and original they might be. Lord Bridge stated that there was,
“difficulty [in] the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the question and answers in the quiz show etc.) and identified as an “original dramatic work”
In the more recent case of Miles v ITV Network (2004) again involving television format rights it does not appear that English copyright law has moved any further forward. The claimant James Miles supplied ITV with promotional material for a cartoon programme where the main characters were a traffic light and traffic furniture. Later, ITV launched a programme called Dream Street where a recovery truck was the main character. Although Mr Miles conceded that the look and feel of the two programmes were very different, there were similarities between the characters and the presence of traffic equipment.
However, the creator of Dream Street produced evidence to show that his work had been in existence before Mr Miles sent his material to ITV. The appeal was dismissed on the basis that the only similarity between he two programmes being the use of traffic equipment meant that the claim was ‘hopelessly weak’
Mr Justice Laddie in IPC Media Ltd v Highbury-SPL Publishing Ltd [2004] drew on the Green case in his ruling on whether IPC’s Ideal Home Magazine’s design, subject matter and presentational style had been copied. Perhaps it is the presentation of its case in this manner that caused the judge to conclude that what they were trying to protect was the general idea behind the magazine as opposed to the expression in the idea evidenced by the detail, in content cover and articles. Justice Laddie quoted from the Green Judgement as follows:
‘The protection which copyright gives, creates a monopoly and ‘there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world:’
The issue here is of course as with television programmes magazine formats remain skeletal as to allow a dimension of spontaneity and creativity within the series. It is therefore difficult to pinpoint a detailed format and attach a copyright to it if details change monthly or even weekly. Justice Laddie concluded that the design techniques used by IPC were common in the industry and could have been applied by anyone designing a home magazine.
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Because the nature of a magazine’s cover and contents is to keep the buyer interested by constantly changing various features, it was difficult for IPC to state clearly what had been copied. No infringement was held to have taken place and again the English courts refused to extend copyright protection to general ideas. Justice Laddie concluded, “…even if, contrary to my findings, Highbury had been “inspired” in some of its design choices by what it saw in IDEAL HOME, it would have been at far too high a level of generality to amount to infringement of copyright.”
The plaintiffs in IPC struggled to prove their case for copyright protection and may have succeeded if they had alleged ‘passing off’ as their focus seemed to be on a visual comparison of the two magazines. This matter was addressed in Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc) [2000] and referred to in the IPC judgement as well as other subsequent cases. Here both parties were designers of wallpapers and fabrics. The plaintiffs alleged infringement of one of their designs. The trial judge found that the defendants had access to the original work and had copied a substantial part of it. The defendants appealed to the Court of Appeal who after making a visual comparison held that the two designs were not sufficiently similar and highlighted a number of differences. The Court of Appeal held that although there was some copying this did not form a substantial part of the work and therefore allowed the appeal. The claimants then appealed to the House of Lords who agreed with the initial trial judge’s decision that the copied features formed a substantial part of the plaintiffs work.
Lord Millet commented that the judge who found for the defendants in the Court of Appeal erred in his approach as he treated what was a copyright case as though the claim was one for ‘passing off’. If passing off had been alleged, it would have been sufficient for the court to have used visual similarities as a main point of comparison as here the charge would have been the defendants taking the plaintiffs goods and trying to ‘pass them off’ as their own. Where there is insufficient similarity on a visual inspection the action will fail. In the case of copyright however, the preoccupation is not with the appearance of the defendant’s work but with its origin.
In the area of film, the extent of protection offered by copyright law has also been discussed in Christoffer v Poseidon Film Distributors Ltd [1999]. Here the court had to decide amongst other matters whether Mr Chistoffer’s copyright in the film script of the story of the Cyclops based on Book IX of Homer’s Odyssey had been infringed by the film production company Poseidon. On the basis that there was evidence of direct copying and adaptation of the Cyclops script in which Mr Christoffer held the copyright, infringement was found on the part of Poseidon. Justice Parks highlighted that words in the final script do not have to be identical in order for there to be sufficient evidence of copying.
‘In the context of a literary work the concept of copying embraces taking the content of the work, or of a substantial part of it, and reproducing it, whether or not the alleged infringer reproduces the content by using the original author’s words or by using his own words’
In relation to books, protecting the expression of ideas was discussed in Harman Pictures v Osborne (1967) where an injunction was granted to restrain the production of a film on the grounds that it infringed the copyright in the claimant’s book as phrases and expressions were directly copied and they both ended with exactly the same quotation.
Baigent and Leigh v The Random House Group (2007) is the most recent case in which the court have had to decide on the issue of copyright in books and whether a substantial part of a work had been reproduced. The claimants were publishers of a 1992 book, the Holy Blood and the Holy Grail and the defendants the publishers of Dan Brown’s 2003 novel entitled Da Vinci Code. Baigent and Leigh contended that in writing six chapters of Da Vinci Code a substantial part of their work had been copied. The claim was dismissed at trial however the claimant were granted leave to appeal to the Court of Appeal.
Mr Justice Smith who heard the case in the first instance agreed that the six chapters highlighted were based largely on the claimants work but still went on to reject the copyright claim. Lord Justice Floyd in the appeal judgement reiterated how the courts would assess a claim for breach of copyright in a literary work. Firstly if there was material in both an early and later work and the author of the later had access to the former, an inference of copying is made. The court would then look closely at the material to establish if there was in fact any copying and whether this amounted to a substantial part.
Baigent and Leigh did not contend that the text of their work was copied directly or that it was in some way adapted. The claim was that Dan Brown had copied the ‘theme’ of their work in his novel. The courts therefore had to decide whether the theme was protected by copyright bearing in mind the established law that copyright does not subsist in ideas but the expression of these ideas.
Dan Brown did not deny that there was a similarity in theme between the two works but contended that he derived this material from other sources. Dan Brown also argued that if the claimant’s work had been used, the part copied was at a high level of generality and for this same reason could not be said to constitute a substantial part of the claimant’s work.
The judge concluded that a central theme did not exist in the original work as if it did, it would have been recorded somewhere.
“If it was one would have expected at least to find somewhere a statement that this is the Central Theme. This is where the Green case [Green v Broadcasting Corporation of New Zealand [1989] RPC 700] is relevant.”
He went on to conclude that if there was such a theme it was too generalised and therefore on the wrong side of the line between ideas and their expression. The judge held that the claimants failed to show structure and architecture to their scheme which remained a number of facts, ideas and assertions. This being the case, there is insufficient evidence of the skill labour and judgement needed in order to attach copyright to it.
On appeal, Lord Mummery agreed with the courts decision and dismissed the appeal after clarifying the need to separate issues of copyright subsistence and infringement. The issue was not whether what was outlined by the Claimant as a central theme was copyrightable but whether it had been copied and whether it formed as a substantial part of the original work. It is in relation to these two points that the judges found the claimant’s had failed to establish their case.
The above cases highlight the complexities faced by claimant, defendant and judge in protecting copyright in any given work. The efforts expounded in the original work and the need to encourage creativity are both in fierce competition with each other. Simon Stokes seems to suggest the reason for this balancing act is because, ‘…go too far one way and innovation is stifled because the public domain of ideas is encroached upon; go too far the other way and copyright creators may be disinclined to create copyright works if the law does not adequately protect their works’
Non textual copying where there is no clear evidence of a direct reproduction of the work will continue to be difficult to prove for so long as it is the expression of the idea that attracts copyright and not the idea itself. In relation to magazine and TV industries, the IPC case indicates that it would be extremely difficult to succeed in a copyright claim where there are changing formats envisaged. Peter Nunn States,
‘Laddie J. found that so many elements of the “format” which the claimants sought to protect were commonplace, including the strapline on the front cover…that he arguably shut the door on future claims to protect a magazine’s format’
It would be fair to say especially on analysing the Baigent judgement that the ideaexpression dichotomy works on two levels, both in relation to copyright subsistence and also to its infringement. In relation to subsistence the courts continue to assert that there can be no copyright in a general idea as was the case in Green and IPC. In relation to copyright infringement, Baignet shows that taking a general idea in a copyright work will not constitute infringement.
The balance to be struck by the court appears to be a ‘work’ in itself as the facts of each case must be carefully examined as what may appear to be an expression is only an idea due to its generality, the fact that it could have been obtained from a number of other sources or it is common practice in a particular industry. What follows in establishing infringement is the concept of substantiality which the courts assess by weighing the amount of skill and judgement applied to the original work. Perhaps Chen Lin Saw rightly observes in Protecting the Sound of Silence in 4’33”,
‘While the idea-expression dichotomy is well established in copyright law and is easy to state in theory, its actual application in practice is still masked by a cloud of mystery and uncertainty’
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