On 28 March the English Court of Appeal delivered their judgment in relation to Dan Brown’s bestseller, The Da Vinci Code. Unsurprisingly, the Court of Appeal Judges agreed with the High Court decision that The Da Vinci Code did not infringe the copyright in the book "The Holy Blood and the Holy Grail" ("HBHG"). However, the Court of Appeal Judges did criticise some of the reasoning of Peter Smith J, the High Court Judge in coming to his decision.

Background

Peter Smith J dismissed the Claimants’ case for copyright infringement on two issues. Firstly, the Claimants had argued that Dan Brown had copied the Central Theme of HBHG (which consisted of 15 sub-themes). However, Peter Smith was unconvinced that the Central Theme represented the core of HBHG and, as such, was not a substantial part of HBHG. Secondly, the Claimants argued that copyright subsisted in the structure of how the Central Theme was formulated in HBHG. Again, Peter Smith disagreed. He felt that there was not any such copyright in HBHG as the sub-themes were merely formulated in a chronological order and, therefore, insufficient skill and labour had been spent in arranging the architecture of the book for copyright protection to subsist.

The Claimants obtained permission to appeal from the Court of Appeal.

Outcome

The crux of this case centred on the concept that copyright protection only exists in the expression of ideas and not in the ideas themselves.


The Court of Appeal Judges agreed with the decision of Peter Smith but criticised how the decision was made. The key area of interest revolves around the meaning of "substantial part" in the test for copyright infringement. The Court of Appeal made clear that the Central Theme itself (as a substantial part of the copyright work) did not need to qualify for copyright protection in its own right (as Peter Smith had arguably suggested). The issue that should have been considered was whether The Da Vinci Code was an infringement of the copyright in HBHG as a result of copying a substantial part of it (in other words was the Central Theme a substantial part of the book).

However, despite criticising Peter Smith’s reasoning, the Court of Appeal nonetheless agreed that the Central Theme did not amount to a substantial part of HBHG as the copyright work.

The other point of interest was that the Court of Appeal confirmed that it is possible to infringe literary copyright by copying the selection, arrangement and structure of literary material (even if the material itself is not capable of copyright protection). On the other hand, it will not amount to copyright infringement by copying general information, facts, ideas, theories even if derived from an original work. The suggestion is that HBHG fell into this latter category.

Comment

This decision clarifies the difficulty that authors or publishers of historical works face as a Claimant in any copyright infringement case. Unless facts and ideas are formulated in such a way that a Claimant can argue that they have utilised adequate skill and labour to attract copyright protection, a copyright infringement claim is likely to fail.