In cases of claimed copyright infringement, it is not the function of the expert to decide the question of substantiality. In cases of simple visual comparison the court can and should do the visual comparison for itself. A distinction between the ‘idea’ of the program and its ‘expression’ is not a distinction known to English law.
Jacob J said: ‘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. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the ‘idea’) of a novel or play can certainly infringe-if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between ‘idea’ and ‘expression’): Nobody has ever been able to fix that boundary and nobody ever can.”
Jacob J
[1994] FSR 275
England and Wales
Citing:
Cited – Nichols v Universal Pictures Co 1930
(US Second Circuit) The judge discussed the difficulty in copyright cases in drawing the line between the taking of general concepts and copying in an infringing manner: ‘Upon any work, and especially upon a play, a great number of patterns of . .
Cited by:
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd CA 26-Mar-1999
The claimant alleged copying of designs. The defendant appealed a finding that copying had taken place.
Held: The rejection of the dissection test in Ladbroke was as to the subsistence of copyright and not as to infringement. Evidence of those . .
Cited – Navitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
Cited – Nova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
The defendant appealed against a finding of copyright infringement in a computer game.
Held: The appeal failed. The court must identify the artistic work relied upon and then decide whether it has been reproduced by copying of the work as a . .
These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.191980
