UK: Computer Software Copyright – New Court Of Appeal Decision

The recent Court of Appeal judgment in Nova Productions v Mazooma Games & Ors (14 March 2007) will be of immense interest and potential concern to software developers and the owners of copyright in computer programs. In its judgment, the Court of Appeal confirmed that:

1. it is not an infringement of copyright to make a computer program which emulates another program (including its look and feel) but which does not copy the other program’s code or graphics;
2. ideas which underlie computer programs are not protected by copyright; and
3. no additional copyright protection, over and above protection as individual graphic works, is given to a series of images displayed in a computer program.

The judgment was handed down by three Court of Appeal judges, with the main judgment being given by Jacob LJ. The appeal was brought against a first instance decision of the High Court which had decided that copyright in an arcade game, based on the game of pool, was not infringed by two competing arcade games, also based on the game of pool. Although the two allegedly infringing games were "inspired by" the first game, and incorporated some (but not many) similar elements, both the High Court and the Court of Appeal held that there was no copyright infringement.

The Court of Appeal also tacitly approved the High Court decision in Navitaire v easyJet (2004), which reached the same conclusions in relation to software copyright. At the time it was made, the Navitaire judgment was considered to signal a death knell for any arguments that copyright could subsist in ideas underlying computer software or in the overall look and feel of software.

For a detailed review of the judgment with further commentary, please see below:

Full Article

On 14 March 2007, the Court of Appeal handed down its judgment in Nova Productions v Mazooma Games & Ors. The appeal was brought against a first instance decision of the High Court which had decided that copyright in an arcade game, based on the game of pool, was not infringed by two competing arcade games, also based on the game of pool. Although the two allegedly infringing games were "inspired by" the first game, and incorporated some (but not many) similar elements, both the High Court and the Court of Appeal held that there was no copyright infringement.

The case concerned the claimant’s (Nova’s) software for a coin-operated arcade game called Pocket Money. The game was based on the game of pool, and users could play the game for a chance to win money. It was launched in 2002 and was recognised in the industry to be a very successful game.

In two separate actions, heard together, Nova brought proceedings for copyright infringement against the developers of two rival coin-operated pool games. These games were launched in 2003. During the first instance hearing, it was established (to the extent that it was not already common ground between the parties) that the designers of the allegedly infringing games had played Pocket Money at a trade exhibition and had drawn inspiration from Pocket Money before creating their games. However, even though the competing games were inspired by Pocket Money, the visual appearance and the rules of Pocket Money are very different to the defendants’ pool games (which are also not similar to each other). The court found that there are certainly similarities between the games, but each game looks and plays in a very different way.

It was common ground between the parties that the defendants did not have access to, or copy, the source code of the software behind the Pocket Money game. Instead, the claimants argued that the defendants had infringed copyright in the program by copying the outputs which appeared on screen when the game was played or, in other words, the "look and feel" of aspects of the Pocket Money game.

Before the High Court, Nova claimed that the defendants had infringed copyright in various works embodied in the software behind the Pocket Money game. These were:

1. Artistic Works – the judge held that images shown on screen that were generated by the software, but which had been designed by a human artist, were artistic works protected by copyright. In addition, the judge also held that composite frames, which were generated by the software based upon the previous and next programmed frames, were also artistic works protected by copyright. Each composite frame was a computer generated work and, as such, the author of the composite frames was the person who had made the arrangements necessary for the creation of the work (e.g. Nova’s designer).
2. Literary Works – the parties had agreed that both the computer program itself and the preparatory design materials for the program were literary works protected by copyright.
3. Dramatic Works – Nova argued that Pocket Money was a dramatic work. The judge held that it was not possible to say that the game was a dramatic work as it was not capable of being performed before an audience. The sequence of events "performed" was different between every game played, as it depended upon the actions and skill of the player. Nova was therefore unable to proceed with its claims that the defendants had infringed copyright in Pocket Money as a dramatic work.

Having reviewed whether and how copyright existed, the judge then followed the traditional approach to establishing whether or not there had been copyright infringement of the artistic or literary works. The traditional approach involves: (a) identifying those features that are allegedly copied from a copyright protected work; (b) discarding similarities which are commonplace and/or unoriginal; and (c) establishing whether what was copied is a substantial part of the copyright work.

Nova relied upon 12 similarities in respect of one of the alleged infringing pool games and 13 in respect of the other. After examining in detail the similarities relied upon by Nova, the judge found that, although the designers of the alleged infringing games had been inspired by some of the features in Pocket Money, a number of those features were commonplace or obvious. He concluded that just four features of one game and five from the other had been derived or copied from Pocket Money.

The judge concluded that the defendants had not copied a substantial part of the skill and effort of the author of the artistic works in the Pocket Money game. The features of the game that were copied were merely ideas expressed by the author "at a high level of abstraction" (for example, the author’s idea of having the cue pulse at the same speed and time as the power meter) which had no meaningful connection with the artistic works relied upon which were protected by copyright.

The judge held that the preparatory design materials were not infringed because none of the similarities relied upon were present in the materials. Even if the similarities had been present in the preparatory design materials, the design notes were found to comprise a series of jottings and ideas, which did not represent any of the key features of the game.

In respect of the allegations of infringement of copyright in the computer program itself, the judge referred to the decision in Navitaire v easyJet (2004) and said that Nova would have similar problems proving infringement. The judge confirmed that it was important to identify the relevant skill and labour that went into writing a computer program and that a distinction must be drawn between "a set of instructions to do something" (e.g. the source code) "and the product itself" (e.g. the look and feel of the software).

Applying Navitaire, the High Court decided that nothing had been copied by the defendants that was protected by copyright. What had been taken, if anything, was a limited number of generalised ideas, none of which were protected by copyright. The High Court therefore dismissed Nova’s action for infringement of copyright.

Nova appealed the High Court decision. Nova decided to drop its claims in relation to copyright infringement of dramatic and film works and, therefore, its appeal was directed only at the artistic and literary copyright in the computer game.

It was common ground between the parties that the individual frames stored in the memory of a computer were "graphic works" capable of being protected by copyright. However, the actual appearance of individual frames between the different pool games is very different. Nothing of the defendants’ screens as single frames could be said to be a substantial reproduction of a corresponding screen in Nova’s pool game. As a result, Nova did not contend that the individual screen graphics infringed copyright. Instead, Nova argued that there was a further artistic copyright in the animation sequence which linked together the different individual graphic works. It contended that the creation of the sequence involved extra skill and labour beyond that which was involved in creating the individual frames.

The Court of Appeal rejected Nova’s arguments, accepting the defendants’ submission that a series of still images, whether created by drawing for a cartoon film or by a computer, was not in itself anything more than a series of frames, each of which would have its own copyright. To illustrate the point, the appeal judge gave the example that:

"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."

Additionally, the court noted that Parliament has specifically created copyright in moving images by way of copyright in films. If Nova were right, a series of still images which provides the illusion of movement would itself create a further kind of copyright work protecting moving images. The judge thought it was unlikely that Parliament intended this.

Nova’s case on artistic works therefore fell at the first hurdle: the defendants had not copied anything that was protected by copyright.

Nova argued that the first instance judge had been wrong to find that ideas which underlie computer programs could not be protected by copyright. Rather, Nova sought to argue that ideas which formed a substantial part of the copyright work (i.e. rather than just in the elements or "building blocks" of a program) could be protected by copyright if they were not commonplace.

Nova also argued that the judgment in Navitaire v easyJet (2004) was incorrect, in particular its finding that copying the functionality of a computer program without copying its underlying code could not infringe copyright.

The Court of Appeal rejected Nova’s arguments and confirmed the position that ideas are not protected by copyright, even if a large amount of an author’s skill and effort goes into formulating that idea. The appeal judge stated that:

"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. 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."

The appeal on literary copyright failed on the ground that what was found to have inspired some aspects of the defendants’ games was too general to amount to a substantial part of Nova’s game. The Court of Appeal approved the conclusion of the first instance judge that what was taken were merely "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 Court of Appeal also found that the appeal should fail on the more specific basis of the principles applied in Navitaire v easyJet. In that case, the first defendant, easyJet, had commissioned the second defendant to produce a substitute piece of software which would "look and feel" like software which easyJet licensed from Navitaire. So far as possible, users were not to notice any difference when they used the new program and, without in any way using or even having access to the source code of Navitaire, this was achieved. Even though the facts were stronger in Navitaire than in the present case, because of the intended high degree of similarity, Navitaire also lost its claims.

The Court of Appeal held that the judge in Navitaire was "quite right" to say that merely making a program which emulates another but which in no way involves copying the program code or any of the program’s graphics is legitimate and not an infringement of copyright.

Finally, the judge rejected Nova’s request that certain questions should be referred to the European Court of Justice, commenting that it is "wholly unrealistic to suppose that the European Court of Justice would hold that copyright protection was to be given to ideas at such a high level of abstraction as those in this case".

The Court of Appeal agreed with the defendants in this case that not all things are covered by copyright and that most, if not every, work is, to some extent, influenced or derived from other works. The appeal judge commented that: "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." The court therefore appeared to reject the age-old adage that "what is worth copying is worth protecting".

The Court of Appeal’s decision confirms the position that the law of copyright will protect computer software, but usually only if the source code of such software is substantially copied. Images and other separately protected works (e.g. musical or film works) will also be protected but only where they justify copyright protection in their own right. As a result of this judgment (and the previous judgment in Navitaire) it will be difficult for software copyright owners to take action against developers of software which has the same functionality, but which does not copy the underlying code or the graphics displayed on screen.

To protect themselves from such copying, software developers could attempt to obtain patent protection for software. However, in Europe at least, patent protection is very difficult to obtain where the software does not form part of an invention which has a clear technical effect. Software developers and software copyright owners could also look to their licence agreements and insert contractual provisions to prevent the licensee from copying the software, even without copying the source code. However, such methods would offer no protection against third parties that are not licensees.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 21/03/2007.