上诉法院判决：侵犯版权

COPYRIGHT — Infringement — Artistic and literary works — Computer game — Computer program emulating another without copying program code — Whether infringement of copyright — Whether game design features constituting ideas excluded from protection

Nova Productions Ltd v Mazooma Games Ltd and others; Same v Bell Fruit Games Ltd [2007] EWCA Civ 219

CA: Sir Andrew Morritt, Chancellor, Jacob, Lloyd LJJ: 14 March

Making a computer program which would emulate another computer program but without copying the program code did not constitute an infringement of the copyright in the other program or in its preparatory design material.

The Court of Appeal so held in a reserved judgment dismissing the appeals of the claimant, Nova Productions Ltd, from the decision of Kitchin J [2006] RPC 379 on 20 January 2006 whereby he dismissed its claims in two copyright infringement actions. The defendants were Mazooma Games Ltd and others, and Bell Fruit Games Ltd. The claimant designed, manufactured and sold arcade video games based on the game of pool. The kinds of copyright work relied on by the claimant were (a) artistic works, being the bitmap graphics and the frames generated and displayed to the user, and (b) literary works, being the design notes and program which the claimant’s designer wrote to implement the game.

JACOB LJ said that in identifying the copyright, and whether it was a series, one had to identify the artistic work and then decide whether it had been reproduced by copying the work as a whole or of any substantial part of it. The individual frames stored in the memory of a computer were “graphic works” within meaning of s 4(2) of the Copyright, Designs and Patents Act 1988. The claimant contended for a further kind of artistic work beyond individual freeze graphics on the basis that the defendants had created a dynamic “re-posing” of the claimant’s version which was said to involve extra skill and labour beyond what was involved in creating individual frames. The defendants said that a series of stills was not in itself more than a series of frames each of which would have its own copyright and no more. His Lordship agreed. The claimant asked the court to take a different view from the trial judge as to what amounted to “ a substantial part”. It was not for the court to embark on the issue of substantiality afresh unless the judge had misdirected himself: see Designers’ Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, 2418. The claimant referred to the speech of Lord Scott, at p 2431, and said that this meant there was a principle that whenever copying had been found it must follow that a substantial part has been taken. His Lordship could not agree. Lord Scott’s observations were to be taken as concerned with the facts of the Designers Guild case itself, not as laying down any general principle. Considering the case on literary work, art 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ L 122, 17/05/1991, p. 0042 - 0046) (the Software Directive), stated “the term ‘computer programs’ shall include their preparatory design material”.

Nothing had been taken in terms of program code or program architecture. Ideas and principles which underlay any element of a computer program were not protected by copyright under the Directive. The well-known dichotomy between an idea and its individual expression was intended to apply and did apply to copyright in computer software. The claimant suggested that the dichotomy applied only to ideas which underlay an element of a program. His Lordship rejected that. Not all of the skill that went into a copyright work was protected. An idea consisting of a combination of ideas was still just an idea. That was as true for ideas in a computer program as for any other copyright work. The Software Directive was to be construed so as to conform to TRIPS (the Agreement on Trade Related Aspects of Intellectual Property Rights (1994) (1869 UNTS 299), Annex IC to the Marrakesh Agreement Establishing the World Trade Organisation (1994) (1867 UNTS 3) and so was to be construed as not to protect ideas as such. The Directive did not say that mere ideas by way of preparatory design work were to be protected. The reasoning in Navitaire Inc v easyJet Airline Co Ltd [2006] RPC 111, provided another reason for dismissing the appeal. Pumfrey J had been right to say that merely making a program which would emulate another but which in no way involved copying the program code or any of the program’s graphics was legitimate.

LLOYD LJ and SIR ANDREW MORRITT C agreed.

Appearances: Martin Howe QC and Robert Onslow (Kuit Steinart Levy) for the claimant; Henry Carr QC and Michael Hicks (Wragge & Co) for the defendants.

Reported by: Carolyn Toulmin, barrister