Nova Productions claims that Mazooma Games and Bell Fruit Games copied the ideas behind its cash-prize game and wants the court to agree to a redefinition of how much of a computer game is copyrighted. The case will now go to the appeals court.
Nova lost the case in the High Court and while waiting for the appeal to be heard wanted to refer one particular element to the European Court of Justice (ECJ). Some of the copyright protection invoked by Nova related to the games as literary works.
Nova said that while the exact specifics of its game had not been copied, its 'preparatory design material' had been.
The EU's Software Directive of 1991 provides protection for programs as literary works. That was already the position in UK law. But the Directive also says that preparatory design material is protected by copyright while underlying ideas and principles are not.
Nova said the High Court had misinterpreted the Directive by discounting "preparatory design material," both in Nova's original claim and in another developer's unsuccessful case against budget airline easyJet. Nova wanted a referral on this point to the ECJ.
However, the three judges hearing the case for a referral ruled that what was copied was an underlying idea, and not a preparatory design.
"We think that there is a realistic prospect that the appeal will fail on the basis that the most that was taken was an 'idea'," wrote Lord Justice Jacob. "The Directive makes it clear that 'ideas and principles' are not protected, reflecting the old and well-known distinction which copyright law draws between a 'mere idea' and its expression – a distinction which generally turns on how much detail is taken."
"This court may conclude that the defendants did no more than take an idea. And, if that were the conclusion, we could not foresee the need to put any question to the ECJ. Whether something is a mere 'idea or principle' seems to us to be a question of fact, not law," he wrote.
The three judges agreed that any referral would extend the case by up to four years, and that it should instead proceed straight to appeal. That appeal case will rule on a crucial legal issue of what exactly constitutes a computer program.
"It was put before the appeal court that 'preparatory design material' should be considered a part of a computer program rather than as something separate," said Nav Sunner, a games law specialist at Pinsent Masons, the law firm behind OUT-LAW. "The QC for Nova basically said that previous judges had interpreted this wrongly."
"However, the appeal court did not express an opinion one way or another on this issue. It will be interesting to see how this interpretation develops at appeal and in the future."
The appeal is due to be heard in November.