Abstract: The appellant (N) appealed against a decision ( [2006] EWHC 24 (Ch), [2006] E.M.L.R. 14 ) dismissing its actions for infringement of copyright against the respondents (X).
N had copyright in a computer game based on the sport of pool. N commenced proceedings alleging that games made by X had infringed its copyright in respect of the artistic works, being the bitmap graphics and the frames generated and displayed to the user, and the literary works, being the designer's notes and the program that he wrote to implement the game. The judge held that there were some similar features of the games but there had not been reproduction of a substantial part of the artistic or literary works of N's game. In particular, the judge found that there were ideas that had been taken by X that had little to do with the skill and effort expended by N's programmer and did not constitute the form of expression of the literary works relied on by N, which therefore were not capable of copyright protection under Council Directive 91/250 .
N argued that (1) although there had been no copying of individual frames of graphics, there was a series of graphics showing the movement of the cue and ball that had copied an essential artistic element of its game; (2) the judge had misdirected himself on what constituted a "substantial part" of the copyright work and that, having found there to have been some copying, he should have found that a substantial part had been taken; (3) only ideas that were an "element" of the program were excluded from copyright protection by the Directive.
Appeal dismissed. (1) "Graphic work" was defined as including all the types of things specified in the Copyright, Designs and Patents Act 1988 s.4(2) , which all had in common the fact that they were static and non-moving. A series of drawings was a series of graphic works, not a single graphic work in itself. No extra copyright work or protection was created by a series. (2) There was no general principle that whenever copying was found it must follow that a substantial part had been taken, Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416 explained. A coincidence in the copyright work and the alleged infringement of small, unimportant details was a starting point indicating copying, but those details alone would not mean that there had been substantial copying. The judge had not misdirected himself. (3) The Directive was clear that for computer programs as a whole, which included their preparatory design work, "ideas" were not protected. The Directive also had to be construed in accordance with the Agreement on Trade-related Aspects of Intellectual Property Rights, which laid down a positive rule that copyright protection must not extend to ideas. The fact that the court was considering a computer program did not preclude a mere "idea" as to what the program should do from being excluded as having nothing to do with the nature of the work. The nature of the work was a computer program having all the necessary coding to function; the general idea was only faintly related to that. An idea consisting of a combination of ideas was still just an idea and not capable of copyright protection. N's ideas that the judge had found to have inspired some aspects of X's games were too general to amount to a substantial part of N's game. Merely making a program that emulated another but which in no way involved copying the program code of any of the program's graphics was legitimate, Navitaire Inc v EasyJet Airline Co Ltd (No.3) [2004] EWHC 1725 (Ch), [2005] E.C.C. 30 applied.
Abstract: The appellant (N) appealed against a decision ( [2006] EWHC 24 (Ch), [2006] E.M.L.R. 14 ) dismissing its actions for infringement of copyright against the respondents (X).
N had copyright in a computer game based on the sport of pool. N commenced proceedings alleging that games made by X had infringed its copyright in respect of the artistic works, being the bitmap graphics and the frames generated and displayed to the user, and the literary works, being the designer's notes and the program that he wrote to implement the game. The judge held that there were some similar features of the games but there had not been reproduction of a substantial part of the artistic or literary works of N's game. In particular, the judge found that there were ideas that had been taken by X that had little to do with the skill and effort expended by N's programmer and did not constitute the form of expression of the literary works relied on by N, which therefore were not capable of copyright protection under Council Directive 91/250 .
N argued that (1) although there had been no copying of individual frames of graphics, there was a series of graphics showing the movement of the cue and ball that had copied an essential artistic element of its game; (2) the judge had misdirected himself on what constituted a "substantial part" of the copyright work and that, having found there to have been some copying, he should have found that a substantial part had been taken; (3) only ideas that were an "element" of the program were excluded from copyright protection by the Directive.
Appeal dismissed. (1) "Graphic work" was defined as including all the types of things specified in the Copyright, Designs and Patents Act 1988 s.4(2) , which all had in common the fact that they were static and non-moving. A series of drawings was a series of graphic works, not a single graphic work in itself. No extra copyright work or protection was created by a series. (2) There was no general principle that whenever copying was found it must follow that a substantial part had been taken, Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416 explained. A coincidence in the copyright work and the alleged infringement of small, unimportant details was a starting point indicating copying, but those details alone would not mean that there had been substantial copying. The judge had not misdirected himself. (3) The Directive was clear that for computer programs as a whole, which included their preparatory design work, "ideas" were not protected. The Directive also had to be construed in accordance with the Agreement on Trade-related Aspects of Intellectual Property Rights, which laid down a positive rule that copyright protection must not extend to ideas. The fact that the court was considering a computer program did not preclude a mere "idea" as to what the program should do from being excluded as having nothing to do with the nature of the work. The nature of the work was a computer program having all the necessary coding to function; the general idea was only faintly related to that. An idea consisting of a combination of ideas was still just an idea and not capable of copyright protection. N's ideas that the judge had found to have inspired some aspects of X's games were too general to amount to a substantial part of N's game. Merely making a program that emulated another but which in no way involved copying the program code of any of the program's graphics was legitimate, Navitaire Inc v EasyJet Airline Co Ltd (No.3) [2004] EWHC 1725 (Ch), [2005] E.C.C. 30 applied.
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