English Copyright Law

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.

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.

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’