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Copyright infringement of a computer program

March 2006 - IT & telecommunications. Legal Developments by SJ Berwin LLP.

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The recent High Court judgment in Nova Productions Ltd v Mazooma Games Ltd and others; Nova Productions Ltd v Bell Fruit Games Ltd again highlights the problems which claimants face in attempting to prove copyright infringement of computer programs based on a similar ‘look and feel’.

The claimant in the actions was Nova Productions Ltd (‘Nova’). In a detailed judgment, Kitchin J dismissed Nova’s claim for copyright infringement in its computer program for a video arcade game called ‘Pocket Money’.

Nova’s claim was that the defendants infringed the copyright in the computer program by copying the outputs which appeared on the game screen.

In 2001 Nova developed a coin-operated, video arcade computer game called Pocket Money, based on the game of pool. The game was a skills-based game known in the industry as a skills-with-prizes (SWP) game.

The Pocket Money game displayed a computer-generated, two-dimensional pool table on a screen. Using an on-screen cue controlled by a rotary device the player attempted to pot balls in various pockets with different monetary values. The values reflected the difficulty of potting a ball into that particular pocket. The aim of the game was to pot as many balls as possible in the time allowed to build up the prize amount that could be won by the player. There were other features such as a power bar indicator and ‘extra time’ features. When the game was launched in 2002 it did very well in the market.

A year later the defendants, Mazooma and Bell Fruit, launched arcade games also based on the game of pool called, respectively, ‘Jackpot Pool’ and ‘Trick Shot’.

Nova subsequently brought actions against Mazooma and Bell Fruit for copyright infringement of the Pocket Money game.

For Nova to succeed in its claim of copyright infringement it needed to prove that:

  • Pocket Money was a copyright work;
  • the defendants copied Pocket Money when they created their respective games; and
  • the copying involve the reproduction of all or a substantial part of the copyright in Pocket Money.

Nova’s copyright in the Pocket Money game
A video arcade game is a collection of separate copyright works. Nova claimed the following copyright works in Pocket Money and that they had been infringed:

a) the ‘literary work’ consisting of the design notes and the computer program implementing the game;

b) the ‘artistic work’ consisting of graphics displayed on the game’s screen; and

c) the ‘dramatic work’ consisting of the visual experience generated on-screen by the game.

Literary copyright in a computer program
A computer program is protected by copyright as a ‘literary work’ under s3(1) of the Copyright, Designs and Patents Act 1988 (CDPA). The CDPA specifically defines a ‘literary work’ as including ‘a computer program’ and ‘preparatory design material for a computer program’.

The defendants accepted that Nova’s design notes and computer program were works of literary copyright and this was not a point of dispute.

Artistic copyright in the screen graphics
Nova claimed that the graphics that were displayed on the game’s screen were ‘artistic works’ under s4(1) of the CDPA which states:

‘…“artistic work” means –

a) a graphic work…’

Section 4(2) CDPA states:

‘…“graphic work” includes –

a) any painting, drawing, diagram, map, chart or plan…’

The judge held that the list of examples of a ‘graphic work’ was non-exhaustive and the definition could include images of the pool table, cue and balls generated on the screen when the Pocket Money game was played. Those images were stored in a computer memory and created a visual effect, similar to that of a painting or drawing. On that basis there was artistic copyright in the Pocket Money screen graphics.

Dramatic copyright in the visual experience
The judge confirmed that a dramatic work must be given its natural and ordinary meaning, that is, ‘a work of action with or without words or music, which is capable of being performed before an audience’. Section 3(1) CDPA provides that a work cannot be both a dramatic work and a literary work.

In this case, the judge decided that the Pocket Money game was not a dramatic work because it was a game with a different sequence of events depending on the manner in which it was played – there was not sufficient unity within the game for it to be capable of performance.

In addition, the defendants’ argument that the program code was a dramatic work was rejected. The program code was a set of instructions which dictated the way in which the game was played and what would appear on the screen. The program code was a literary work and so could not also be a dramatic work.

Originality of Nova’s copyright works
The defendants argued that Nova’s computer program designer, who was deemed to be the author of the program for copyright purposes, had himself copied his ideas for the features of the Pocket Money game from other games on the market. On that basis, Nova did not have copyright in Pocket Money since copyright only exists in ‘original works’ (s1 CDPA).

The judge decided that at the time that Pocket Money was created, although Nova’s designer admitted that he had seen other games with some commonplace features that were incorporated in Pocket Money, he was not aware of a game that had nearly all the features of Pocket Money. The judge therefore dismissed the defendants’ argument on originality.

Infringement of the copyright in Pocket Money
The judge then carefully considered those features of Jackpot Pool and Trick Shot that were allegedly copied from Pocket Money in order to assess whether they had been copied and to determine whether any features that had been copied constituted a substantial part of Pocket Money.

Literary copyright
Nova’s claim was not that the defendants had access to, or copied, the software code in the computer program itself – but rather that the defendants had infringed copyright in the computer program by copying the outputs that appeared on the screen.

The judge referred to the case of Navitaire v easyJet which involved a similar claim for copyright in a computer program. In Navitaire, as in this case, the underlying software in the computer program had not been copied and the claimant unsuccessfully argued that the similarity of the output of the computer program was enough to establish copyright infringement. This argument failed as the judge held that two completely different computer programs could produce the same result (output) and so the fact that the outputs were similar was not sufficient to prove any similarity in the computer programs.

In the present case the judge followed the reasoning in Navitaire and came to the same conclusion on literary copyright. Since nothing had been taken by the defendants in terms of the computer program code, similarities in the outputs did not mean that there were any similarities in the underlying software program. Although there were some similarities between the rules of Pocket Money, Jackpot Pool and Trick Shot those similarities were just general ideas. The Software Directive confirmed that ideas and principles which underlie any element of a computer program are not protected by copyright.

In addition, although there were some written notes that formed the preparatory design material for the computer material they were just some jottings and ideas and did not include details of the key features of the game.

Artistic work
The judge decided, in relation to the artistic work, that the overall visual appearance of each of the three games was very different and that they looked and played in a very different way. Although there were some similar features, which were to some extent derived from or inspired by Pocket Money, most of those features were commonplace in the market and the defendants had therefore not appropriated a substantial part of the artistic skill and labour expended in producing Pocket Money.

On that basis he held that the defendants had not reproduced a substantial part of the artistic copyright in the Pocket Money game and so had not infringed.

The Nova case confirms our conclusion from the Navitaire case, see IHL127 p69, that it can be difficult to succeed in an action for copyright infringement based on the ‘look and feel’ of computer programs, particularly where that look and feel consists largely of commonplace or unoriginal features.

However, as we cautioned in commenting on Navitaire, these cases turn on their facts. The decision in this case, as regards artistic copyright at least, was partly on the basis of Kitchin J’s overall impression that the visual appearance and rules of each of the games were very different.

Had Kitchin J’s impression been otherwise, he may well have found in Nova’s favour.

Indeed, the result in Nova is perhaps less of a surprise than in Navitaire, since in Navitaire it was clear that the defendant deliberately wrote a program intended to have the same look and feel as the claimant’s.

These cases demonstrate the continuing tension in software cases between two often quoted ‘principles’ of the law of copyright, namely:

a) that copyright does not protect an idea but only the manifestation of that idea; and

b) that copyright protects the skill and labour involved in creating a copyright work.

The application of these apparently competing principles makes it difficult to predict outcomes in software copyright litigation, but the cases of Navitaire and now Nova demonstrate that courts will not be over-keen to find infringement where the program code has not been copied.

By Andrew Shindler, partner, and Doris Myles, PSL, SJ Berwin LLP.

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