British Judges Not Snookered by Copyright Claim

It is always interesting to read a copyright opinion from the other side of the pond, to do a comparative look at how our ancestors (in the sense of our legal system), deal with similar issues. A recent opinion by the English Supreme Court of Judicature, Court of Appeal, Civil Division, Chancery Division (Intellectual Property) etc. etc., covers the idea-expression dichotomy and the scope of protection for computer generated pool games, Nova Prods. Ltd. v. Mazooma Games Ltd. Here is the link.

The panel consisting of the Chancellor of the High Court, Lord Justice Jacob (the author of the opinion), and Lord Justice Lloyd affirmed the High Court opinion below by Mr. Justice Kitchin. The appeal was limited to claims in the bitmap graphics and frames displayed to the user and in the underlying program. Lord Justice Jacob's opinion recites that defendant was not alleged to have copied code, and that should have been the end of the matter on the literary works claim. From a U.S. standpoint, there appears to be a missing step: the claim that one could infringe a literary work to which one did not have access is impossible to sustain. If, on the other hand, the claim is that the visual elements are protected by the same, unified copyright (something that is true under U.S. law) then I don't see why the court had an earlier, separate review of a a graphical infringement claim. I sense I am not grasping an important UK practice point, so perhaps someone, maybe even my esteemed colleague The IPKat, will steer me in the correct direction.

In any event, Lord Justice Jacob's discussion of the idea expression dichotomy would resonate well with U.S. lawyers and judges. Of particular interest to international lawyers is his discussion of the application of EU directives into U.K. domestic law, and status of TRIPs as a later international treaty. He notes that "[a]lthough ordinarily a UK Act is not to be construed by reference to a later international treaty, I note that Lord Hoffman considered TRIPs to be of relevance to our domestic copyright law in Designers Guild. Here the position is clearer because we are dealing with EU law. The ECJ has held that TRIPs (to which the EU as well as its Member States is a party) is relevant to the construction of earlier EU legislation concerned with intellectual property)."

The trip down the TRIPs lane turns out to be a digression, though, as the court held that all three bases for law: domestic UK law, the EU software directive, and TRIPs precluded protection at the broad level sought by plaintiff. Eight ball in the side pocket.