We reported the decision of Mr Justice Peter Smith that The Da Vinci Code by Dan Brown did not infringe copyright in The Holy Blood and the Holy Grail, as two of its three authors had alleged. The case went to the heart of what many fiction writers do, and was therefore watched with considerable interest. Now, the Court of Appeal has upheld the first instance judgment, though not uncritically.

The claimants alleged not literal copying but non-textual copying, and argued that the book presented 15 central themes which taken together constituted its ‘architecture’.

The trial judge was not persuaded, mainly because this was still nothing more than the expression at a very general level of a number of ideas and facts. Ideas and facts cannot be protected by copyright.

The Court of Appeal agreed that all that could be said to have been copied was an assortment of historical facts, ideas and theories. They did not attract copyright protection per se: ‘Copyright … tends to lie in the detail with which the basic idea is presented.’ What Mr Brown had done did not infringe the claimants' copyright, and to hold otherwise risked giving them a monopoly in historical research and knowledge, preventing the legitimate use of their material. A line has to be drawn, and in the present case Dan Brown's book fell on the right side of it.