Factual and Procedural Background
The Appellant appeals from the dismissal by Judge Kitchin of its actions for copyright infringement against the Appellees concerning computer games based on pool. The Appellant’s game is called "Pocket Money" and the defendants’ games are "Jackpot Pool" and "Trick Shot." The Appellant originally relied on copyright in artistic works (bitmap graphics and frames), literary works (design notes and program code), dramatic works, and film copyright. However, the Appellant abandoned claims based on dramatic and film copyright, leaving only artistic and literary works for consideration. The trial judge made numerous factual findings, none of which were challenged on appeal. The court had the benefit of viewing the games and relevant moving images, confirming the judge’s clear factual descriptions.
Legal Issues Presented
- Whether the defendants' games infringe the Appellant's copyright in artistic works embodied in the game graphics and animations.
- Whether the defendants' games infringe the Appellant's copyright in literary works, including the computer program and preparatory design material.
- The extent to which copyright protection extends to a series of graphic frames as opposed to individual frames or a film.
- The application of the idea-expression dichotomy and the concept of substantial part in copyright infringement of computer programs under UK law and the EU Software Directive.
- Whether the court should refer questions of EU law to the European Court of Justice concerning the scope of copyright protection for ideas in computer programs.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that the defendants copied substantial parts of its artistic works, not at the level of individual frames but as a dynamic series showing movement and animation, constituting a distinct artistic work.
- The Appellant argued that the combination of features in the defendants' games represented a substantial part of the skill and labour embodied in the Appellant's work.
- It was submitted that copyright protection should extend to preparatory design material and that copying the function of a computer program constitutes infringement of literary copyright.
- The Appellant challenged the trial judge’s assessment of what constitutes a substantial part and argued that the judge misdirected himself both factually and legally.
- The Appellant suggested that the law was uncertain and requested a reference to the European Court of Justice on the interpretation of the Software Directive regarding protection of ideas versus expression.
Appellees' Arguments
- The Appellees contended that the individual frames of the games were sufficiently different and that no frame-for-frame copying occurred, negating infringement of artistic works.
- They argued that a series of still images does not constitute a single artistic work but rather a collection of individual graphic works.
- They maintained that the defendants did not copy the program code or architecture and that any similarities were limited to general ideas or commonplace features common to pool games.
- The Appellees relied on the idea-expression dichotomy, submitting that ideas and principles underlying computer programs, including their functions and interfaces, are not protected by copyright under the Software Directive.
- They opposed the request for a reference to the European Court of Justice, arguing that the law was clear and that copyright does not protect ideas at a high level of abstraction.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Norowzian v Arks [1998] FSR 394 |
Reserved position on film copyright in computer games. |
Appellant abandoned film copyright claims, so court did not consider this further. |
| Designer Guild v Russell Williams [2001] FSR 113 |
Deference to trial judge’s findings on substantial part and caution on appellate reversal. |
The court upheld the trial judge’s assessment that no substantial part was copied. |
| LB Plastics v Swish [1979] RPC 551 |
Small details can prove copying but do not necessarily constitute substantial part. |
Used to illustrate that minor similarities do not amount to substantial copying here. |
| Ibcos v Barclays [1994] FSR 275 |
Distinction between idea and expression; detailed ideas may infringe, general ideas do not. |
Supported the court’s rejection of protection for general ideas underlying the program. |
| Navitaire v easyJet [2004] EWHC 1725 (Ch), [2006] RPC 111 |
Non-textual copying of program function without source code copying is not infringement. |
Cited as authority supporting dismissal of literary copyright claim here. |
| Schieving-Nijstad v Groeneveld Case C-89/99 |
Interpretation of TRIPS and EU law requiring copyright protection to extend to expression, not ideas. |
Supported the court’s interpretation that ideas are not protected under the Software Directive and TRIPS. |
| Kleeneze Ltd. v D.R.G. (U.K.) Ltd. [1984] F.S.R. 399 |
Ideas expressed in a work are not protected if they have no connection with the nature of the work. |
Referenced in explaining why general ideas underlying the program are not protected. |
| Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 |
Commonplace ideas do not constitute substantial part of copyright work. |
Used to reject protection for commonplace features in the games. |
| Nichols v Universal Pictures (1930) 45 F. (2d) 119 |
Difficulty in precisely defining boundary between idea and expression. |
Illustrated the complexity of the idea-expression distinction applied here. |
| Dyson v Qualtex [2006] EWCA Civ 166, [2006] RPC 769 |
Use of travaux préparatoires in interpreting legislation only when unambiguous. |
Supported rejection of reliance on ambiguous legislative history. |
Court's Reasoning and Analysis
The court began by affirming the trial judge’s unchallenged factual findings, emphasizing the distinct visual appearances and gameplay of the games, and noting the commonplace nature of many game features such as power meters, aiming lines, and cue rotation. It rejected the Appellant’s attempt to treat a series of graphic frames as a single artistic work, holding that a series of still images remains a collection of individual graphic works and does not create a new category of copyright protection beyond film copyright.
The court applied the principle that copyright protects expression, not ideas, and that general or commonplace features, even if combined, do not constitute a substantial part of the protected work. It relied on the House of Lords’ guidance to defer to the trial judge’s assessment of substantiality absent clear misdirection, which was not demonstrated. The court also distinguished between minor copying of details, which may prove copying but not substantiality, and wholesale copying of a work.
Regarding literary works and computer programs, the court interpreted the Software Directive and UK legislation to protect the expression of programs, including preparatory design material as literary works, but not the underlying ideas, logic, or functions. It rejected the Appellant’s argument that copying the function or combination of features amounted to infringement without copying code or architecture. The court relied on the Navitaire case to confirm that independently created programs that emulate the function of another without copying code do not infringe.
The court also considered international law, including TRIPS, emphasizing that copyright protection extends to expression and not to ideas or principles. It found no basis to extend protection to ideas at the level of abstraction claimed by the Appellant, nor did it find the legislative history persuasive to the contrary. The court declined to refer questions to the European Court of Justice, finding the law sufficiently clear.
In sum, the court concluded that the Appellant failed at the initial stage of identifying a substantial part of artistic or literary work copied, and that the alleged similarities were either commonplace, general ideas, or implemented in different ways, precluding infringement.
Holding and Implications
The court DISMISSED the appeal, upholding the dismissal of the copyright infringement claims against the defendants.
The direct effect is that the defendants’ games do not infringe the Appellant’s copyright in either artistic or literary works. The decision confirms the principle that copyright does not extend to general ideas, commonplace features, or the mere function of computer programs absent copying of protected expression such as code or specific graphics. No new precedent was established, but the ruling reinforces established UK and EU law on copyright protection for computer programs and related artistic works, particularly in the context of computer games.