COPYRIGHT - The Holy Grail of Non-textual Copyright Protection
A recent decision in the High Court has reaffirmed the boundaries of what is protected by copyright under English law. Michael Baigent and Richard Leigh, two of the authors of The Holy Blood and The Holy Grail published in 1982, brought a claim for copyright infringement against Random House, the publishers of The Da Vinci Code in the
What does copyright protect?
Literary works are protected by copyright under section 1 of the Copyright, Designs and Patents Act 1988 (CDPA). Literary works include computer programs as well as books and other written works.
Copyright protects the skill and labour expended in making the work by giving the copyright owner the exclusive right to do certain things with the work and, therefore, the right to prevent anyone else from doing those things. If someone copies the text of a book or the code of a program, there is an infringement of copyright. This is what is called literal copying. But things are never quite so simple; the amount of the text or the code that has been copied may be important, because the test of what is and what isn't an infringement is whether a substantial part has been copied. There is no hard and fast rule as to what a substantial part might be. It is measured qualitatively rather than by quantity, so copying a relatively small part of a book or a program may be an infringement.
A central theme expressed as a literary work
In The Da Vinci Code case Mr Baigent and Mr Leigh argued that Dan Brown, the author of The Da Vinci Code had copied the central theme of The Holy Blood and The Holy Grail. This theme was essentially a theory that Jesus and Mary Magdalene were married and had children whose descendants became the Merovingian French dynasty protected by the secret society of the Priory of Sion. Mr Brown accepted that he had used The Holy Blood and The Holy Grail as a source for his book and had included the ideas that it was alleged he had copied, but he denied that those ideas were a central theme of his book or of the The Holy Blood and The Holy Grail.
The claim was dismissed. The claimants had to show that there was a central theme expressed as a literary work in The Holy Blood and The Holy Grail and that Mr Brown had copied a substantial part of that work. Following the decision in Designers Guild v Russell Williams (Textiles) Limited  FSR 11 the judge noted that in order to establish infringement, the part of The Holy Blood and The Holy Grail that had been copied had to be a substantial part of that work, but there was no requirement for it to be a substantial part of The Da Vinci Code.
The judge concluded that The Holy Blood and The Holy Grail did not have the central theme as was alleged by the claimants. He held that it was an "artificial contrivance" that the claimants had developed for the litigation by working backwards from The Da Vinci Code. Any central theme that did exist in The Holy Blood and The Holy Grail was at too general a level of abstraction to be protected by copyright. The judge commented that it was difficult to protect against the copying of facts and ideas in a book that claimed to be a non-fictional book. Copyright only protected the effort and time that had gone into the presentation of those ideas and facts.
Non-textual copying of software
Claims based on non-textual infringement of books are fairly unusual. There have been more reported cases in relation to software and television format rights. Even in these areas claimants have found it difficult to establish that infringement has occurred.
In 2004, in Navitaire Inc -v- easyJet Airline Co and Bulletproof Technologies, Navitaire claimed copyright protection in the "business logic" used by its software and that easyJet and Bulletproof had infringed its copyright by "non-textual" copying of this "business logic" (partly because of the similarity in the eye of the user) akin to copying the plot of a book. The Court disagreed, holding that the analogy with book plots was a poor one. The judge thought that a better analogy was that one chef copying another chef's pudding by devising a recipe of his own could not infringe any copyright there may have been in the original written recipe.
This view was followed in the case of Nova Productions Ltd -v- Mazooma Games Ltd  EWHC 24 (Ch) where it was found that many of the features of a video game that it was alleged had been copied were obvious and unoriginal. The judge in that case concluded that those features relied on to prove infringement were expressed at such a high level of "generality and abstraction" that a substantial part of the original copyright work had not been copied.
Copyright protects the expression of an idea, and not the idea itself. I may have an idea for a book, but that in itself is not protected by copyright. Whereas the text of the book, once I start writing it, is protected. However, a detailed plot of a play or book may be protected by copyright and this is known as non-textual infringement of a literary work. The difficulty in determining whether there has been non-textual infringement of copyright is in deciding where an idea ends and the expression of the idea begins. In IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd , the judge stated that where to draw the line between idea and expression is a "matter of degree".
In other words, it's unpredictable and a question of degree in each particular case as to whether what has been taken is "over-borrowing of the skill, labour and judgement that went into the copyright work". Although recent cases have gone against the copyright owner, there is no reason why there will not be cases where non-textual copying can be established.
If you would like further advice about any of the issues considered above please contact Paul Northwood on 01869 331753 or email him at firstname.lastname@example.org.
This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.