It is often said that copyright protects the expression of an idea, but not the idea itself.  The Court of Appeal applied this principle in deciding a recent copyright infringement action over computer games.

In Nova v Mazooma the claimant had developed a computer game based on the game of pool.  The defendants had each developed other pool-themed games which, the claimant alleged, infringed the copyright in its computer game.

There was no suggestion that the defendants had had access to, or had copied, the source code of the claimant's game.  Instead the claimant relied on copyright subsisting in the bitmap graphics and frames generated and displayed to the user and copyright in the design notes for the game and the computer program implementing it.  The Court of Appeal held against the claimant on both grounds, in part for the following reasons:

  • The still images in the defendants' games were very different to those in the claimant's game
  • There could be no copyright in the animation sequence of still images as a "graphic work", only in the individual images themselves
  • Such similarities as did exist between the games were at a high level of abstraction and too general to amount to copying of a substantial part of the claimant's game

  • What had been taken was only a combination of some generalised ideas reflected in the output of the original game, rather than any of its program code or program architecture

The case confirms the High Court's approach in Navitaire v Easyjet, with the Court of Appeal holding that Pumfrey J was "quite right to say that 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".  The Court acknowledged the claimant's argument that the decision meant that 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" but stated that otherwise, "protection would have moved to cover works merely inspired by others, i.e. to ideas themselves."

In a different context, the Court of Appeal took a similar approach to "non-textual" copying in deciding the 'Da Vinci Code' appeal.  In that case, the claimants alleged that Dan Brown, author of bestselling novel 'The Da Vinci Code', had infringed the copyright in their non-fiction book, 'The Holy Blood and The Holy Grail'. The claimants were able to point to only minimal examples of language used in the novel which was the same as that used in their book but alleged that Mr Brown had copied a substantial part of their book by copying its 'central theme'. 

The courts have held that the copying of a novel's detailed plot can, in certain circumstances, amount to copyright infringement.  Here though, despite the fact that Mr Brown had based parts of his book on material in the claimants' book, what had been taken was "of too high a level of generality and abstraction to qualify for copyright protection".  The trial judge had been entitled to find that, to the extent that Mr Brown had taken material from the claimants' book, the material taken fell on the "wrong side of the line between ideas and their expression". 

Outlook

Publishers of software, including computer games, are restricted in the protection that is afforded to their products.  Whilst source code and graphics in software will attract copyright protection, the general rules of, or concepts used in, the software will not.  Publishers seeking to rely on copyright in order to prevent competitors producing games based upon the same format or with a similar 'look and feel' will need to clearly identify the material alleged to have been copied and show that what has been copied amounts to a substantial part of the copyright work and not just generalised concepts or ideas.

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