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 whole or of any substantial part of it. ”Graphic work’ is defined as including all the types of thing specified in s.4(2) which all have this in common, namely that they are static, non-moving. A series of drawings is a series of graphic works, not a single graphic work in itself.’
There was no frame by frame copying, and the first claim failed. Not all of the skill which goes into a copyright work is protected for example the skill involved in creating an invention which is then described in a literary work. An idea consisting of a combination of ideas is still just an idea in a computer program as in any other copyright work.
‘Mr Howe submitted that if the decision below is upheld there is no effective protection for games against copying of the game where a party copies the rules of a game but not its graphics. Mr Carr submitted that that not all things are covered by copyright, that most if not every work is, to some extent, influenced or derived from other works. So it is very important that copyright is not allowed to intervene to stifle the creation of works that are actually very different, as the individual games are here.
I agree with Mr Carr. If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves. ‘
Judges:
Jacob LJ
Citations:
[2007] EWCA Civ 219, [2007] Bus LR 1032
Links:
Statutes:
Copyright Designs and Patents Act 1988 3(1) 16(1)
Jurisdiction:
England and Wales
Citing:
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – LB (Plastics) Ltd v Swish Products Ltd HL 3-Jan-1979
Access and Similarity base proof of Copying
Copyright is intended to protect one person against his work being copied by another. One person must not be permitted to appropriate the result of another’s labour; it is for the plaintiff to establish and prove as a matter of fact that copying has . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd ChD 1994
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 . .
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 . .
Cited – Schieving-Nijstad VOF and Others v Groeneveld ECJ 13-Sep-2001
ECJ Reference for a preliminary ruling: Hoge Raad der Nederlanden – Netherlands. Agreement establishing the World Trade Organisation – Article 50(6) of the TRIPs Agreement – Interpretation – Direct effect – . .
Cited – Dyson Ltd v Qualtex (Uk) Ltd CA 8-Mar-2006
Jacob LJ: In the context of construing an international treaty by reference to the travaux preparatoires to find a definite legal intention Lord Steyn said: ‘Only a bull’s-eye counts’ (Effort Shipping v Linden Management [1988] AC 605 at 625). Much . .
Cited – Effort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk) HL 22-Jan-1998
A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an . .
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 . .
At First Instance – Nova Productions Ltd v Mazooma Games Ltd and others ChD 20-Jan-2006
The claimant alleged copyright infringement in respect of computer games in the coin operated video market. It was said not that the games copied bitmap graphics, but rather the composite frames which appeared on the screen.
Held: The games . .
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. . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 10 July 2022; Ref: scu.250013