21-03-07

Copyright in Video Games 2 The Court of Appeal has refused the appeal from a video games company in a case which helps explain copyright protection of a video game. In Nova Productions Limited v Mazooma Games Limited and Bell Fruit Games Limited [2007] EWCA Civ 219 (reported 14 March), the Court found that, although there had been copying, it was "just too general to amount to a substantial part" of Nova's game. Nova claimed copyright protection in "Pocket Money" by virtue of the video game being four different things: an "Artistic work" (the graphics and displays), a "Literary work" (the software and design notes), a "Dramatic work" (the game itself) and a "Film" (the series of images), though it dropped the "film" argument in this appeal. Whilst the Court agreed that some of Mazooma's and Bell Fruit's games' features had been "inspired" or "affected" by Nova's game, it upheld the earlier decision that nothing of the new games' screens was a "substantial reproduction of a corresponding screen" in Nova's game, that there was no "slavish" copying of any code and that the themes in the game and the idea of a rotary controller and an animation cycle were merely ideas and that, accordingly, the copyright claim (even of "non-textual" copying) must fail. This case again confirmed the well known rule that there is no copyright in an idea (and apparently this is now "well-known all over the world"). The Court further said that "an idea consisting of a combination of ideas is still just an idea [and] that is as true for ideas in a computer program as for any other copyright work." The Court again approved the "pudding" analogy of a chef, who invents a new pudding and publishes his recipe, having no claim against his rival who, after much culinary labour, succeeds in creating the same pudding but with a different published recipe. "Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no." The Court confirmed that "merely making a program which will emulate another but which in no way involves [substantially] copying the program code or any of the program's graphics is legitimate". Indeed, "if protection for such general ideas were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be". This case highlights the relatively-limited scope of copyright protection for software programs, which covers not much more than the graphics and the actual source code - and, as always in copyright cases, those elements must be "substantially" copied before any infringement claim would be likely to succeed. The full text of the judgment may be accessed via: http://www.lawtel.com/~dcea93a769084a2c89aabe3aba5af785~/content/display.asp?ID=AC0112979CA%28CivDiv%29.pdf.
Article by Tom Frederikse