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.
