On 14 March 2007 the English Court of Appeal rejected the appeal of Nova Productions against a February 2006 decision dismissing Nova’s claim against Mazooma Games for copyright infringement in high level features of a computer game based on a game of pool. In the course of his judgment Jacob L.J. made a number of observations that may influence the attitude of the English courts to software copyright infringement cases in the future.

The judge at first instance had held that the elements alleged to infringe (for instance a pulsing pool cue synchronised with a power meter) were cast at such a level of abstraction and were so general that he could not conclude that they amounted to a substantial part of the computer programme. They were ideas which had little to do with the skill and effort expended by the programmer and did not constitute the form of expression of the literary works relied upon.

He had also reached the same conclusion by applying the principles explained in Navitaire v easyJet, commenting that such similarities that existed in the outputs did not mean that there were any similarities in the software. What has been taken was a combination of a limited number of generalised ideas which were reflected in the output of the programme and did not form a substantial part of the computer programme itself. Consideration of Article 1(2) of the Software Directive confirmed this position: ideas and principles which underlay any element of a computer programme were not protected by copyright under the Directive.

The Court of Appeal agreed with the judge’s fundamental finding that what the claimant sought to protect was at the level of general ideas, and therefore was not the subject of copyright. Jacob L.J, who gave the judgment of the court, commented:

“If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves.”

The Court of Appeal differed from the judge in holding that there was no artistic copyright in a series of images over and above that in each separate still. The claimant’s case on infringement of copyright in artistic works therefore failed at that point, since its case was based only on considering the series of graphics together, producing (for instance) the movement of the pool cue and power meter. It was conceded that there was no frame for frame reproduction.

As to infringement of literary copyright in the computer programme, the claimants argued that the EU Software Directive prevented the protection of ideas as copyright only where they underlay an element of the programme. The Court of Appeal rejected this. It also commented that the animation cycle (e.g. a pulsing cue) could in any event be regarded as an element of the programme.

The Court of Appeal also agreed with the judge that the appeal failed on the basis of the principles set out in Navitaire. The judge had summarised the effect of Navitaire as being that it was important to identify the relevant skill and labour that went into writing a computer programme; that a distinction had to be drawn between a set of instructions to do something and the product; and that the analogy with the plot of a novel, which if it was copied, could amount to substantial reproduction of the work, was a poor one when it came to computers.

The claimants sought to argue that Navitaire was wrong, based on the provisions of the EU Software Directive. The judge had expressed no view on whether the full reasoning in Navitaire would apply to preparatory design materials as well as to computer programmes themselves. The Directive states that preparatory materials, as well as programmes themselves, are to benefit from copyright protection as computer programmes. The claimants argued that the protection given to preparatory materials extended to ideas as well as the expression of ideas. The claimants posited a case where there are two clear stages in the making of a programme – a first stage where the designer sets out all the things he wants the programme to be able do and a second stage (which may be by a different person) where the actual programme code is written. They contended that the first stage was intended to be protected as such, even if it consisted only of ideas as to what the programme should do.

The Court of Appeal rejected this:

“The Directive does not say that mere ideas by way of preparatory design work are to be protected. As I have said it makes it clear that for computer programmes as a whole (which includes their preparatory design work) ideas are not to be protected. What is protected by way of preparatory design work is that work as a literary work – the expression of the design which are to go into the ultimate programme, not the ideas themselves.

So for example, if Mr Jones had actually written a description of the pulsing, rotating cue, and synchronised power meter his description would (if not too trivial at least) be protected as a literary work. People could not copy that. But they could use the same idea. Similarly and more generally, a written work consisting of a specification of the functions of an intended computer programme will attract protection as a literary work. But the functions themselves do not.” …

So I think Mr Howe's attack on Navitaire fails. The reasoning in Navitaire provides a second reason for dismissing this appeal. Pumfrey J was quite right to say that merely making a programme which will emulate another but which in no way involves copying the programme code or any of the programme's graphics is legitimate.”

The decision of the Court of Appeal clarifies to some extent the circumstances in which the copyright in preparatory materials for a computer programme can be infringed by the making of a computer programme whose functionality is copied from that programme.

What is protected is “the expression of the design which are to go into the ultimate programme”. Since preparatory materials are protected under the Directive as a computer programme, it would be strange indeed if a computer programme was not capable of infringing the copyright in such materials. However there is a way to go yet in understanding the level of detailed expression that would result in protection and infringement, and whether such protection is in practice always limited to technical and not functional elements.