The claimants appealed against a decision that the defendant’s book, the Da Vinci Code, had not infringed their copyright. The judge had found some copying, but not so much that a substantial part had been copied.
Held: Mummery LJ said: ‘In particular, in cases in which the issue of copying has to be decided on disputed evidence the court should be guided by the sound legal principle that proof of similarity between the alleged infringing work and the original copyright work, coupled with proof of direct or indirect access to the original, is prima facie evidence of copying for the defendant to answer: Francis Day and Hunter Ltd. v. Bron [1963] Ch 587 at 612 per Wilberforce J (a wise judgment, which does not seem to have been cited to the judge).
The application of this principle and some reference to the applicable provisions of the 1988 Act (none of which feature in the judgment) would, I think, have disciplined the reasoning and strengthened the structure of the judgment.
The following issues frequently arise for decision in proceedings for infringement of literary copyright under the 1988 Act. Although this is not an exhaustive checklist, the following are worth bearing in mind as issues that will usually need to be considered, preferably in a chronological setting or, in more complicated cases, of sub-sets of chronologies.
What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying and an allegation of infringement should never get as far as legal proceedings, let alone a trial. The 1988 Act confers on the owner the exclusive right ‘to copy the work’ either direct or indirectly (section 16). This is not an exclusive right to prevent the publication of a work on a similar subject or a work which happens to contain similar material, thematic or otherwise.
What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential if the Claimants are to prove that the Defendant’s work is a copy . .
What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as ‘a substantial part’ of the original copyright work?’
Lloyd LJ explained the task of the court in identifying a copyright infringement: ‘ The claim for breach of copyright is in some respects unusual, but it has to be tested by reference to the same principles as would be relevant in a more conventional case. If material is found in a later work which is also in an earlier copyright work, and it is shown that the author of the later work had access to the earlier work, an inference of copying is raised. Then it has to be considered whether there was in fact any copying, in relation to which the later author may say that he obtained the material from his own unaided efforts or from a different source. If it is found that any of the material common to both works was copied from the earlier work, then the question arises whether what was copied was a substantial part of the earlier work.
If the copyright work in question is a literary work, the allegation will normally be that part of the text of the earlier work was copied, exactly or with some modification, in the creation of the later work. In the present case that is not what is alleged as the basis for the claim in copyright infringement. What is said to have been copied is a theme of the copyright work. Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the cases in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.’
Mummery LJ also said, as to what amounted to ‘substantial’: ‘The decision on the substantiality or otherwise of the copying of HBHG in DVC required a careful assessment or evaluation of all the relevant evidence by the fact-finding tribunal in the context of the pleaded case. This included the nature and extent of the copying, having regard to the importance, as well as the amount, of what has been copied from the original work, and the nature of the respective works.
The 1988 Act does not define ‘a substantial part’ or even indicate what factors are relevant to substantiality. I do not think that there is any real point in asking: what does ‘a substantial part’ mean? That sort of question is only a path to a dictionary and to the dubious substitution or addition of other words which do not help to answer the crucial question of fact: is DVC a copy of ‘a substantial part’ of HBHG?
It is more sensible to ask whether there exist in this case the necessary and sufficient conditions for characterising the parts copied from the original work as ‘a substantial part’ of the original work. The decided cases help in identifying the relevant necessary and sufficient conditions for substantiality. Thus, it is not necessary for the actual language of the copyright work to be copied or even for similar words to be used tracking, like a translation, the language of the copyright work. It is sufficient to establish that there has been substantial copying of the original collection, selection, arrangement, and structure of literary material, even of material that is not in itself the subject of copyright.
It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work.
I agree with Lloyd LJ that no clear principle can be laid down on how or where to draw the line between the legitimate use of the ideas expressed and the unlawful copying of their expression.’
Judges:
Mummery LJ, Lloyd LJ
Citations:
[2007] EWCA Civ 247, [2007] FSR 24
Links:
Statutes:
Copyright Designs and Patents Act 1988
Jurisdiction:
England and Wales
Citing:
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
Appeal from – Baigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
See Also – Baigent v Random House and Another ChD 3-May-2006
The court had released a draft of its judgment to the parties under terms as to its use. Journalists on ‘The Lawyer’ had become aware of it, and posted details on its website, in breach of those terms.
Held: Apologies had been made, and the . .
Cited by:
Cited – Meakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .
Cited – Allen v Bloomsbury Publishing Plc and Another ChD 14-Oct-2010
The claimant sought damages alleging breach of copyright by the defendant author saying she had copied large parts of the claimant’s work in her book ‘Harry Potter and the Goblet of Fire’. The defendant now sought summary judgment, saying the action . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – Sheeran and Others v Chokri and Others ChD 6-Apr-2022
Insufficient Evidence to say Song was Copied
S sought a declaration that he had not copied the defendant’s song with his own. The court examined the musical details of both songs.
Held: The song was not copied. The defendant had not shown that the claimant knew anything of the . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Leading Case
Updated: 07 April 2022; Ref: scu.250576