The judgment
upholds an earlier High Court ruling in a case involving three
computer games simulating pool. Under UK copyright law and EU
Directives, the court ruled that the ideas behind the games cannot
be protected by copyright, because copyright does not protect
general ideas.
"Merely making a program which will emulate
another but which in no way involves copying the program code or
any of the program's graphics is legitimate," said Lord Justice
Jacob, who gave the Court's ruling.
Nova Productions produced Pocket Money, a game
based on pool. Mazooma Games produced a game called Jackpot Pool
and Bell-Fruit one called Trick Shot. Nova claimed that the other
two developers had infringed its copyright by using similar
elements in their games to those it used in Pocket Money.
Nova did not claim, though, that the source
code of its game had been copied or that the graphics had been
copied. Those actions would have been clear infringements of
copyright.
The company did claim that there was an extra
right in the imagery used in its game, something beyond the
copyright attaching to individual images and related to its use of
a power bar used to judge the strength of a pool shot and of a cue
control mechanism.
"Mr Howe invited us to find that there was in
effect a further kind of artistic work, something beyond individual
freeze-frame graphics," said Jacob in his ruling. "This was said to
be because there is a series of graphics which show the 'in-time'
movement of cue and meter. So, it was said, that what the
defendants had done was to create a dynamic 're-posing' of the
Claimant's version – one in which the detail of the subjects had
changed, but an essential artistic element of the original was
carried through to the Defendants."
The Court found, though, that for copyright
purposes the moving images must be taken as simply a series of
still images, each of which has its own copyright protection.
"A series of drawings is a series of graphic
works, not a single graphic work in itself," said Jacob. "No-one
would say that the copyright in a single drawing of Felix the Cat
is infringed by a drawing of Donald Duck. A series of cartoon
frames showing Felix running over a cliff edge into space, looking
down and only then falling would not be infringed by a similar set
of frames depicting Donald doing the same thing. That is in effect
what is alleged here."
On that count alone the Nova case would fail,
said the judge, but he went on to rule on the other issues in the
case.
He said that some copying of another person's
work is permitted, and that to infringe copyright it must be
'substantial'.
Jacob also said that there are some parts of
the creative process which are not protected by copyright law,
which only gives legal protection to very specific things. "Not all
of the skill which goes into a copyright work is protected – the
obvious example being the skill involved in creating an invention
which is then described in a literary work," he said. "An idea
consisting of a combination of ideas is still just an idea. That is
as true for ideas in a computer program as for any other copyright
work."
On
the protection of ideas, Jacob quoted an opinion he gave himself in
an earlier case. "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," he said in that
ruling in 1994. "But if the 'idea' is detailed, then there may be
infringement. It is a question of degree."
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, he said in that dispute between Ibcos
Computers and Barclays Mercantile.
The general nature of the ideas which Nova was
seeking to protect was the downfall of its argument on the basis of
literary copyright. "The appeal on literary copyright fails on the
simple ground that what was found to have inspired some aspects of
the defendants' game is just too general to amount to a substantial
part of the claimants' game," said Jacobs. "The Judge's evaluation,
far from being wrong in principle, was right when he said 'they are
ideas which have little to do with the skill and effort expended by
the programmer and do not constitute the form of expression of the
literary works relied upon'."
The protection of such general ideas is not
only not a part of copyright law or the relevant European
directives, it is something that could be damaging to businesses,
the Court of Appeal found.
"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," said Jacobs. "Protection would have
moved to cover works merely inspired by others, to ideas
themselves."
The decision backs a 2004 ruling in easyJet's
favour after it was accused of infringing copyright in an airline
booking system. The budget airline had commissioned a system that
emulate the look and feel of another system built by a company
called Navitaire. This was achieved without copying source code and
the court rejected the main claim of infringement.
