In Nova Productions Ltd v Mazooma Games Ltd & Ors [2007] EWCA Civ 219, Nova Productions Limited brought a claim against two other computer game makers – Mazooma Games Limited and Bell Fruit Games Limited. The claimant’s case rested on the copyright it claimed in an arcade video game called ‘Pocket Money’. This was a game constructed around a ‘pool’ theme (as in snooker or billiards, not swimming), featuring a computer-generated, two-dimensional pool table. In Pocket Money, players manipulate an on-screen cue, using a rotary controller, in order to pot balls into pockets. Each pocket is assigned a different monetary value. Players are assisted by a row of sighting dots, together with a pulsing power meter. The defendants had each produced visually similar pool-themed games – one called ‘Jackpot Pool’ and the other ‘Trick Shot’.
The claimant alleged that the defendants had infringed several copyright protected aspects of its Pocket Money game:
· a dramatic work embodied by the game itself;
· various artistic works – namely the bitmap graphics and composite frames generated and displayed to the user as the game was played; and
· various literary works – namely the design notes and the computer program underlying the game.
Significantly in respect of the third limb, there was no allegation that the defendants had ever had access to the claimant’s source code or design notes; the claim rested on the output of that source code and those notes – the ‘look and feel’ of the game.
At first instance
At first instance, the High Court found that there had been no copyright infringement.
· On the dramatic work: giving the words their natural and ordinary meaning, the court rejected the argument that Pocket Money, or indeed the program code, was a dramatic work. Ultimately, the images displayed on screen were dependent on the manner in which the game was played. The claimant abandoned its dramatic work argument on appeal.
· On the artistic works: though there were similarities amongst some visual features of the games, the court found these to be either (a) obvious and/or unoriginal; or (b) to be otherwise cast at such a ‘high level of generality or abstraction’ as not to form any meaningful connection with the graphic works relied on.
· On the literary works: the court drew a distinction between similarities in the outputs of software and similarities in the actual software code itself. Applying the decision in Navitaire Inc v Easyjet Airline Company and Another [2006] EWHC 24 (Ch), which involved an airline getting a new supplier to design a replacement online booking system, Kitchin J found that no part of a copyright work (namely the ‘computer program’ or design notes) had been copied. The ideas taken by the defendants had little, if anything, to do with the skill and effort expended by the claimant’s programmer and, therefore, did not constitute the expression of a literary work.
The claimant appealed.
On appeal
The Court of Appeal comprehensively dismissed the appeal.
Artistic Works
In relation to the claimed artistic works, the claimant appealed on the grounds that, although no individual graphic frames had been copied from Pocket Money, there was a series of graphics, which showed the ‘in-time’ movement of the cue and meter. These, it was alleged, copied an essential artistic element of the claimant’s game, which involved extra skill and labour beyond that involved in creating the individual frames, and so should be protected by copyright.
In dismissing the claimant’s argument, Jacob LJ considered the types of works included in the statutory definition of ‘graphic work’ under s 4(2) of the Copyright, Designs and Patents Act 1988 and concluded that they were connected by the fact that they were all static and non-moving. It followed that a series of drawings was a series of graphic works and not a single, protectable graphic work in and of itself. Jacob LJ drew an analogy to cartoons, stating that no-one would say that the copyright in a single drawing of Felix the Cat would be infringed by a drawing of Donald Duck. Accordingly, the copyright in a series of cartoon frames showing Felix running over a cliff edge into space, looking down and then falling would not be infringed by a similar set of frames depicting Donald doing the same thing. While this analogy is not without its weaknesses – a series of cartoon frames could be argued to be a static artistic work in its own right – the fact is that the claimant’s case on artistic works fell at the first hurdle for the simple reason that none of the separate graphic works had been copied.
Even if the series of graphics had constituted a graphic work, Jacob LJ continued, the claimant would have failed on the grounds that there had been no copying of a substantial part of that work. Jacob LJ rejected the claimant’s argument that the decision in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 established a general principle that, whenever copying was found, it must necessarily follow that a substantial part had been taken – evidence of copying was the starting point for a finding of infringement not the end point.
Literary Works
The claimant appealed the trial judge’s findings on its claimed literary works on two grounds:
1) ideas v expression dichotomy: in the context of computer programs, the claimant argued that the dichotomy between an idea and its individual expression was intended to apply only to ideas which underlie an ‘element’ of a program. Therefore, only ideas that were an element of a program were excluded from copyright protection by Article 1(2) of the Software Directive (Council Directive of 14 May 1991 on the legal protection of computer programs (91/250/EEC)), from which the relevant CDPA provisions derived; and
2) preparatory works should be protected: in relation to the design notes, the claimant argued that there was a distinction between computer programs and conventional literary words. In light of Recital 7 of the Software Directive, it was intended that preparatory design works for computer programs should be protected even if they consisted only of ideas as to what the program should do. In making this argument, the claimant attacked as ‘poor’ the well known analogy of a chef emulating another chef’s new pudding through his own endeavours and without reference to the original recipe; in these circumstances, as Pumfrey J held in Navitaire, the later recipe does not infringe the earlier recipe as there has been no copying of the underlying written recipe.
The appeal was rejected on both counts, primarily for the simple reason that what was found to have inspired some aspects of the defendants’ game was too general to amount to a substantial part of the claimant’s game. In relation to the first ground of appeal, though, Jacob LJ confirmed that the dichotomy between an idea and its individual expression should, and did, apply to copyright in computer programs in the same way that it did to any other copyright work. Noting that not all of the skill that goes into any copyright work is protected, the appeal judge rejected the claimant’s assertion that the exclusion under Article 1(2) of the Software Directive should be limited to ideas that are elements of a program and considered that extending copyright protection to mere ideas would contravene the provisions of TRIPS.
Referring to Pumfrey J’s decision in Navitaire, Jacob LJ also rejected the claimant’s second ground of appeal on the basis that the Software Directive clearly stated that, with respect to computer programs as a whole (including their preparatory design work), ‘ideas’ were not protected. Preparatory design work was protected only to the extent that the ideas it embodied were expressed as a literary work – the ideas themselves were not the subject of protection. In reaching this conclusion, Jacob LJ clearly endorsed the principle set out by Pumfrey J in Navitaire – making a program which emulates or imitates another, but which involves no copying of the program code or any of the program’s graphics, is not copyright infringement.
ECJ Reference
In the appeal, the claimant suggested that the law in this area was sufficiently uncertain to warrant a reference to the European Court of Justice. Jacob LJ swiftly rejected the reference on the grounds that it was ‘wholly unrealistic’ to suppose that the ECJ would find that copyright protection should extend to ideas at such a high level of abstraction as those in the present case.
Comment
The decision in Nova Productions v Mazooma places the Court of Appeal’s stamp of approval on the principle that the expression of the idea embodied in computer software is the code – the program – underlying that software, not the output of that code when the software is run.
The CDPA protects ‘computer programs’ as a form of literary work. However, in doing so, it shoehorns software into a category of protection where it does not always sit comfortably. This manifests itself in a number of ways, as reflected by the specific provisions of copyright law that were introduced to implement the Software Directive. However, that Directive does not deal with all the implications of the fact that a computer program’s ‘literary’ content is consumed in a totally different way to the way in which the literary content of most other literary works is consumed. In this case, the claimant sought to use the distinctive nature of computer programs to support an extension of copyright protection beyond software’s literary content – beyond the code. A computer program’s literary content is not consumed by a human. Instead, it is used by a computer to produce an output, which may then be consumed by a human. Software is, by its very nature,
designed to do something. In contrast, other literary works are designed to be something in and of themselves – a book, a cartoon, a news article, etc. They convey meaning to the reader directly through their literary content. The Court of Appeal held that, if literary copyright is available, then its protection extends only to its literary content, as is consistent with other literary works. By way of analogy, literary copyright exists in a set of instructions for assembling a bookcase, but not in the bookcase that results from following them.
This decision, following close on the heels of the decision in Navitaire, provides relatively clear guidance to those in the software industry as to where the line is between protected expression and unprotected ideas. Those seeking to protect the output of their software development efforts are going to have to use means other than copyright – the laws of confidentiality, contract, design law, database rights, trade marks and passing off are all worth considering on the appropriate facts. Indeed, the very term ‘look and feel’ indicates that the laws of designs, trade mark and passing off are likely to be more appropriate legal tools than the law of copyright in this arena.
Ben Allgrove is an Associate and Paul McGrath is a trainee in the IT/C department of Baker & McKenzie LLP in London.
