Nova Productions Ltd v Mazooma Games Ltd* (Sir Andrew Morritt, Jacob and Lloyd L.JJ.;  EWCA Civ 219; 14.03.07) – Reported at  RPC 589 (no. 25)
The claimant had produced a successful coin-operated video game based on pool which allowed players to win cash prizes. It was the sort of game seen in pubs and arcades.
The defendants also produced video games based on pool aimed at the same sort of market. There were some similarities but the games played very differently. The defendants never had access to the claimant’s source code, but of course had the chance to play the claimant’s game, and knew the video games market in general.
In the High Court, the judge found that, of the instances of copying alleged, none owed anything to actual copying from the claimant’s game – though some features were inspired or affected by the claimant’s program. The fact that there were similarities was a result of the defendants’ general experience and knowledge of what was commonplace in the market.
The Court of Appeal’s analysis
The images stored as graphics in a program are obviously graphical works and protected as such by copyright. The claimant said that the sequence of such images was also protected. The Court of Appeal disagreed: moving images were protected by film copyright and a series of still images was just that and nothing more.
The code of software is of course protected as a literary work. The question was how far copyright would go in protecting the idea behind a literary work as opposed to the literal text (or code) itself. Again the Court of Appeal disagreed with the claimant’s arguments. There was no special case for computer programs such that their ideas – or combinations of their ideas – were protected. Copyright protected skill of a certain type – in the case of computer programs, it protected in particular the work that went into the programming, not the work that went into the general idea or ideas behind the program.
The Court of Appeal cited with approval the 2004 decision in Navitaire v easyJet. In that case the defendants had set out to replicate as closely as possible the functionality, look and feel of the claimant’s program, but the judge still found that there was no copyright infringement (other than for copying some of the icons). The Court of Appeal summarised the Navitaire judgment as meaning 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”.
A number of conclusions can be derived from this judgment, and also from the Navitaire case:
It now appears good law that simply copying what a program does and the way it does it is not infringing the copyright in that program
Copyright protects the work that goes into producing the work itself, in the case of computer programs, the work of coding, not necessarily the work of analysis on which the coding was based
Of course, if someone copies actual lines of code, or graphics such as icons, then this could well be copyright infringement.