Copyright Infringement: Cracking The Code

Vanessa de Froberville, Commerce & Technology Group, Lawrence Graham LLP

It has long been said that copyright protects the expression of an idea, rather than the idea itself. We have seen this in practice in two recent Court of Appeal cases which have considered whether copyright was infringed where the underlying theme or idea of a piece of work had, allegedly, been copied. Much has been made of these cases in the news, but what did they decide and have they changed the law?

In general terms, copyright is infringed where someone copies all or "a substantial part" of a copyright work. This can be fairly straightforward to prove in some cases, such as where a book has been photocopied or source code in software has been duplicated. In other cases, though, the alleged copier may argue that what he has 'copied' is too abstract either to qualify as a copyright work in its own right or to amount to the copying of "a substantial part".

Does copyright protection extend to the ideas and themes behind copyright works: the 'look and feel' of a website; the output of a computer program?; the plot or characters of a novel?; the structure, architecture or functionality of a computer program?

The Nova Productions case

Our first case is Nova Productions v Mazooma Games (2007). Nova designs, makes and sells arcade video games. One of its games, called 'Pocket Money', was based on the game of pool. The year after Pocket Money was launched, two of Nova's competitors did something similar; Mazooma brought out a game called 'Jackpot Pool' and Bell Fruit Games launched 'Trick Shot'.

Nova claimed for copyright infringement against Mazooma and Bell, arguing that they had copied a series of frames (an animation sequence) from Pocket Money as well as the design notes and the computer program underlying the game. Nova did not, however, argue that Mazooma and Bell had copied the Pocket Money source code; but instead argued that copyright in its computer program had been infringed by the copying of the outputs which appeared on the screen.

The Court decided in favour of Mazooma and Bell, saying in particular that:

although each individual frame of the Pocket Money game attracted separate copyright protection, there was no additional copyright protection in a series of frames (ie, the animation sequence as a whole); and that,

the copyright in Nova's design notes and computer program had not been infringed because, whilst the Court believed that features of Nova's...