1032

Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR

Court of Appeal A

Nova Productions Ltd v Mazooma Games Ltd and others

Nova Productions Ltd v Bell Fruit Games Ltd
[2007] EWCA Civ 219
B
2007 Feb 6, 7; Sir Andrew Morritt C, Jacob and Lloyd LJJ
March 14

Copyright
Infringement
Video games
Defendants producing video games

imitating idea and e›ect of claimants video game
Claimant alleging breach of
copyright in its artistic and literary works
Whether individual bitmap graphics
or succession of frames generating moving image constituting graphic work
C
Whether game design notes and program ideas constituting literary work

Whether combination of features reproduced amounting to substantial part of
original
Copyright, Designs and Patents Act 1988 (c 48) (as amended by
Copyright (Computer Programs) Regulations 1992 (SI 1992/3233), reg 3),
ss 3(1), 4
Council Directive 91/250/EEC, art 1
Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) (1994), art 9(2)
D
The claimant designed, manufactured and sold coin-operated video games
including a game called

Pocket Money, which simulated a game of pool. It claimed
that its copyright in that game had been infringed in a game called

Jackpot Pool
developed by the defendants in the rst action, and in a game called

Trick Shot
developed by the defendant in the second action. The claimant relied on its copyright
in artistic works under section 4 of the Copyright, Designs and Patents Act 19881
consisting of the bitmap graphics and the frames generated and displayed to the
E
player of the game, and in literary works under section 3 of the 1988 Act, as amended
in order to implement Council Directive 91/250/EEC2, consisting of the design notes
and the program written to implement the game. The claimants also contended that
the features copied by both defendants amounted to a substantial part of the
copyright works relied on. The judge found that, in their visual appearance, the
games were each very di›erent and that, in spite of certain similarities, each game
played in a very di›erent way. Having considered the features of the claimants game
F
said to have been copied, he found that none of those features had been copied
actually as implemented in the claimants game, but that a few features had been
derived from or inspired by the copyright work. Though he was prepared to assume
that a moving image generated by a succession of still shots in one game should be
compared with a similar e›ect in another game when considering whether there had
been substantial reproduction of artistic works, he nevertheless found that there had
been no infringement of copyright and no substantial reproduction and he dismissed
both actions. G
On the claimants appeal
Held, dismissing the appeal, (1) that although individual frames were

graphic
works for the purpose of section 4(2) of the 1988 Act and were capable of
infringement, a series of such frames providing an illusion of movement was not a
single graphic work in itself and was not therefore capable of protection under
section 4; and that since there had been no frame-for-frame reproduction of the
bitmap graphics, there had been no breach of the claimants copyright in its artistic H
works under section 4 (see post, paras 15—18, 56, 57).
1
Copyright, Designs and Patents Act 1988, s 3 as amended: see post, para 60.
S 4: see post, para 58.
2
Council Directive 91/250/EEC, art 1: see post, para 63.
 1033
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)

A (2) That the ideas and principles which underlay any element of a computer
program were outside the scope of copyright protection under both UK and
European law, which protected the means of expression of an idea but not the idea
itself; that the making of a computer program which would emulate another
computer program but without copying the program code did not constitute an
infringement of the copyright in the program or in its preparatory design material
when considered as

literary works under section 3 of the 1988 Act, construed by
B reference to article 1 of the Directive; that where what was created by way of
expression in the program was a combination of features, it was not necessarily a
substantial part of the copyright work if that combination was reproduced in a
defendants work; that what had been taken from the claimants game by the
defendants was a combination of a limited number of generalised ideas which were
reected in the output of the program but did not amount to a substantial part of the
program itself; that, moreover, those ideas had little to do with the skill and e›ort
expended by the programmer and did not constitute a form of expression of the
C
literary works relied upon; and that, accordingly, there had been no infringement of
the claimants copyright in its literary works under section 3 (see post, paras 22—23,
30, 31, 35—36, 38, 44, 45, 50, 52, 56, 57).
Per curiam. (i) It is unlikely that Parliament, having specically created copyright
in moving images by way of copyright in lms, should have intended that a series of
still images which provides the illusion of movement would itself create a further
kind of copyright work protecting moving images ( post, para 17).
D (ii) To protect by copyright mere ideas as such would contravene article 9(2) of
the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The Directive must be construed so as to conform to the TRIPS Agreement and so
must be construed as not to protect ideas as such ( post, paras 38, 64).
Navitaire Inc v easyJet Airline Co Ltd [2006] RPC 111 approved.
Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994]
FSR 275 and Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as
E Washington DC) [2000] 1 WLR 2416, HL(E) considered.
Decision of Kitchin J [2006] EWHC 24 (Ch); [2006] RPC 379 a–rmed on partly
di›erent grounds.

The following cases are referred to in the judgment of Jacob LJ:

Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC)
[2000] 1 WLR 2416; [2001] 1 All ER 700; [2001] FSR 113, HL(E)
F Dyson Ltd v Qualtex (UK) Ltd [2006] EWCA Civ 166; [2006] RPC 769, CA
Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275
Kleeneze Ltd v DRG (UK) Ltd [1984] FSR 399
LB (Plastics) Ltd v Swish Products Ltd [1979] RPC 551; [1979] FSR 145, HL(E)
Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C-106/89)
[1990] ECR I-4135, ECJ
Navitaire Inc v easyJet Airline Co Ltd [2004] EWHC 1725 (Ch); [2006] RPC 111
G Norowzian v Arks Ltd (No 1) [1998] FSR 394
Schieving-Nijstad vof v Robert Groeneveld (Case C-89/99) [2001] ECR I-5851;
[2002] FSR 346, ECJ

The following additional cases, although not cited, were referred to in the skeleton
arguments:
Admar Computers Pty Ltd v Ezy Systems Pty Ltd [1997] 853 FCA; 38 IPR 659
H Biogen Inc v Medeva plc [1997] RPC 1, HL(E)
Cantor Fitzgerald International v Tradition (UK) Ltd [2000] RPC 95
Cuisenaire v Reed [1963] VR 71
Davis (J & S) (Holdings) Ltd v Wright Health Group Ltd [1988] RPC 403
E›ort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605;
[1998] 2 WLR 206; [1998] 1 All ER 495; [1998] 1 Lloyds Rep 337, HL(E)
1034
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR

Foley (Brigid) Ltd v Ellott and others [1982] RPC 433 A

Francis Day & Hunter Ltd v Bron [1963] Ch 587; [1963] 2 WLR 868; [1963] 2 All
ER 16, CA
Interlego AG v Tyco Industries Inc [1989] AC 217; [1988] 3 WLR 678; [1988] 3 All
ER 949, PC
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273; [1964]
1 All ER 465, HL(E)
Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd [2004] EWCA Civ 886; [2005] B
RPC 88, CA
Lotus Development Corpn v Borland International Inc (1995) 49 F 3d 807; [1997]
FSR 61
Powerex Services Pty Ltd v Data Access Corpn (1997) 37 IPR 437
Thrustcode Ltd v WW Computing Ltd [1983] FSR 502

APPEAL from Kitchin J C

The claimants, Nova Productions Ltd, the owner of the copyright in a
video coin-operated arcade game called Pocket Money, brought actions
against (1) Mazooma Games Ltd, Games Network Ltd, Gamestec Leisure
Ltd, Inspired Broadcast Networks Ltd and Leisure Link Electronic
Entertainment Ltd, alleging infringement in its game called

Jackpot Pool
and (2) Bell Fruit Games Ltd alleging infringement in its game called

Trick
Shot. On 20 January 2006, Kitchin J [2006] EWHC 24 (Ch) rejected all the D
claims in both actions but granted permission to appeal.
On 4 July 2006, for reasons given on 25 July 2006, the Court of Appeal
(Waller, Jonathan Parker and Jacob LJJ) refused an application by the
claimant for a preliminary reference to the European Court of Justice.
The claimant appealed from the judgment of Kitchin J on the grounds,
inter alia, that: (1) the judge, in following and applying Navitaire Inc v E
easyJet Airline Co Ltd [2006] RPC 111, had followed and applied
principles that were wrong in law, in particular (a) in considering that
reproduction of program code or architecture or form of expression was
necessary for infringement and that similarities in output might not be
enough by themselves to amount to infringement and (b) in distinguishing
between generalised ideas reected in the output of the program and
the program itself; (2) the judge should have considered whether the F
defendants, in writing their computer programs, had adopted a substantial
part of the design skill and labour invested by the claimants program
designer in deciding what was to appear on the screen, how it would
move around and how it would react to user input, this being relevant
skill and labour recorded in the claimants computer program and design
documents; (3) the judge had failed to consider either (a) whether the G
output of the claimants computer program was or was not an interface
within the meaning of Council Directive 91/250/EEC on the legal
protection of computer programs or (b) if it was, whether the sole purpose
of the computer software was to be invoked by the excluded interface; and
if he had done so, he should have answered both questions in the negative
and that, therefore, the present case was not within the ambit of the
H
Navitaire case.
By a respondents notice dated 26 September 2006 the defendants sought
to uphold the judgment on the following additional grounds. (1) In
accordance with the principles explained in the Navitaire case, even if the
functions of the defendants games were identical to those of the claimants
 1035
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A game, there could be no infringement of literary copyright in the software

for the claimants game because the functions carried out by a program were
not protected by the literary copyright a›orded to the program itself.
(2) The judge correctly held that the defendants games did not reproduce a
substantial part of the preparatory design materials relied upon by the
claimants alleged infringement of literary copyright. He did not express a
B
conclusion as to whether the reasoning of Pumfrey J in the Navitaire case
applied to preparatory design materials as it applied to computer programs.
The defendants contended that in point of law the same reasoning applied.
(3) When considering the issue of infringement of copyright in one or more
artistic works displayed on a computer screen (none of which was infringed
when considered individually) it was not permissible to consider a series of
such artistic works which, when displayed in sequence by a computer
C program, gave rise to an impression of movement and then to consider
whether a similar impression of movement was given by the output screens
of an allegedly infringing program.
The facts are stated in the judgment of Jacob LJ.
Martin Howe QC and Robert Onslow for the claimant.
Henry Carr QC and Michael Hicks for the defendants.
D
Cur adv vult

14 March. The following judgments were handed down.

JACOB LJ
E
1 The claimant, Nova Productions Ltd (

Nova), appeals from the
dismissal by Kitchin J [2006] RPC 379 of its actions for infringement of
copyright against Mazooma Games Ltd (

Mazooma) and Bell Fruit Games
Ltd (

Bell-Fruit). The copyright works relied on are Novas computer
game based on pool and called

Pocket Money. The defendants games are
respectively called

Jackpot Pool and

Trick Shot. Novas case was
argued by Mr Howe, that of the defendants by Mr Carr.
F 2 The kinds of copyright work originally relied upon were: (i) artistic
works, being the bitmap graphics and the frames generated and displayed to
the user; (ii) literary works, being (Novas designer) Mr Joness design notes
and the program which he wrote to implement the game; (iii) a dramatic
work embodied in the game itself; (iv) lm copyright.
3 Below, Nova relied upon the rst three types. Having regard to the
G decision in Norowzian v Arks Ltd (No 1) [1998] FSR 394 it merely reserved
its position in relation to lm copyright for possible argument on appeal. In
the event it chose not to do so. It has also abandoned its dramatic work case.
So we only have to consider the cases advanced based on artistic and literary
works.
4 The relevant legislation is rather lengthy. I set it out in an appendix
[post, paras 58 et seq] so as to get to the issues sooner. So far as the facts are
H
concerned Kitchin J had to deal with more than we do. None of his factual
ndings is challenged. A fuller account of them than is necessary here can be
found in his judgment and the annex to it showing relevant screens of the
various games. We had the advantage of actually seeing the games and the
moving images involved and also a DVD of them. These helped, but
1036
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

actually, having read in advance the judges extremely clear description with A
the annex, I, at least, saw just what I expected to see.

Key ndings of fact

Generally
5 First some general ndings applicable to both actions. I set them out
(adding numbers) in the words of the judge [2006] RPC 379, para 136: B

(1)

the visual appearance and the rules of Pocket Money, Trick Shot
and Jackpot Pool are all very di›erent. There are certainly similarities
between them which I address below. Nevertheless, each of the games
looks and, to my mind, plays in a very di›erent way . . .
6 I pause to interpolate that it is a remarkable feature of this case that it C
is unnecessary actually to know how any of the games concerned are played
or even what they are other than computer games based on pool. Moreover
although the two defendants games are very di›erent from each other as
well as from the claimants, both are said to infringe the same copyrights.
This is because the allegation is at such a general level.
7 Moving back to the ndings:
D
(2)

It is not contended that the defendants ever had access to or copied
the code itself: para 129.
(3)

the use of a power meter was extremely common practice in games
design and to have the power level pulsing was an obvious way to
implement the feature and so permit the player to select what level of
force he wishes to use . . . having a pulsing bar going from left to right E
was a common choice by numerous games designers and . . . the colour
scheme involving the use of yellow changing to red was also a common
choice as it conveyed to the player the strength of the shot: para 151.
(4)

the idea of having a visual indication of the direction of the shot
was commonplace . . . nearly all two-dimensional and three-dimensional
pool games produced over the last 20 years have had some form of dashed
or dotted or solid view line projecting from the cue ball for aiming F
purposes . . . having an aiming or view line was a simple or common
idea: para 149.
(5)

it was desirable to have dots or crosses as opposed to a solid view
line to avoid the problem of aliasing: para 176.
(6)

Further, it was common ground . . . that having the cue rotate
around the cue ball was an obvious, common and functional way of G
showing the player how to direct the shot ( para 145);

the majority of
computer pool games in the last 20 years show a cue pointing at the cue
ball and rotating around it under player control. It is fundamental to a
pool game to show the direction of a shot, and generally speaking it is
usual to show the cue rotating around the cue ball to indicate this . . . this
feature was commonplace: para 146.
H
(7) Showing the table in plan view is commonplace: paras 140 and
141.
(8)

Showing the pulsing power level by an animation cycle in which
(i) the cue moves away from and towards the cue ball, and (ii) a bar
graphic varies with the power level is not commonplace but

was one of
 1037
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A the obvious ways to implement the commonplace idea of having a pulsing

power meter in a pool game: para 155.
(9)

Having values associated with pockets was very common in video
pool games: para 162.

Extent of copying generally

B 8 The judge of course had to consider in detail the features of Pocket
Money said to have been copied into Trick Shot and Jackpot Pool
respectively. This he did at paras 138—197 for Trick Shot and at paras 172—
197 for Jackpot Pool. In each case the claimants had listed a number of
features which they alleged had been copied. The judge found that none of
these features had been copied actually as implemented in Pocket Money.
However a few had been

inspired or

a›ected by Pocket Money. I turn to
C
consider these in the case of each game complained of.

Copying by Trick Shot

9 Twelve features were alleged to be similar and to have been copied. In
the result the judge found that most of the features of similarity relied upon
owed nothing to Pocket Money at all. They were the result of the designers
D of Trick Shot own work based on their general experience and what was
commonplace. His ndings in relation to the surviving features were
summarised conveniently by Mr Howe as follows, using the judges
numbering: (1) the theme of pool: the general idea in part inspired by Pocket
Money; (4) the cue moves round the ball under the rotary controller: the idea
of the rotary controller inspired by Pocket Money but the movement of the
E cue round the ball not derived from Pocket Money; (7) the animation cycle:
the idea of synchronising the cue with the power meter probably derived
from Pocket Money; (8) the values near or in the pockets: the general idea
inspired by Pocket Money, implemented very di›erently.

Copying by Jackpot Pool

F 10 Mr Howes summary of the features found by the judge was: (1) the
theme of pool: inspired by Pocket Money; (4) the row of sighting dots:
a›ected by Pocket Money in that it led to shortening of the line of dots;
(6) the animation of the cycle: synchronising the pulsing cue with the pulsing
power meter; (9) the graphic of money travelling across the screen: not, as
pleaded, derived but the idea of the coin graphic moving across the screen
probably inspired by Pocket Money.
G
The case on artistic works
Identify the copyright work
a series?
11 First one must identify the artistic work relied upon and then decide
whether it has been reproduced by copying of the work as a whole or of any
substantial part of it. That is the e›ect of section 3(1) and section 16(1) of
H
the Copyright, Designs and Patents Act 1988. It is an aspect of UK copyright
law untouched by any EU harmonisation.
12 First then, what is the artistic work? It was common ground that the
individual frames stored in the memory of a computer were

graphic works
with the meaning of the Act: see judgment, paras 100—104. But the actual
1038
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

appearance of individual frames between Pocket Money and the alleged A

infringements are very di›erent: see judgment annex. Regarded just as
picturesas

graphic works in the words of the Actthey are obviously
very di›erent. Save for the fact that they are of a pool table with pocket,
balls and a cue, nothing of the defendants screens as single frames can be
said to be a substantial reproduction of a corresponding screen in Pocket
Money. Both before the judge and us Mr Howe accepted that

each of the
B
defendants had done their own drawings of cues and billiard balls and did
not contend for infringement at the level of individual screen graphics.
13 Mr Howe invited us to nd that there was in e›ect a further kind of
artistic work, something beyond individual freeze-frame graphics. This was
said to be because there is a series of graphics which show the

in-time
movement of cue and meter. So, it was said, that what the defendants had
done was to: create

a dynamic
re-posing of the claimants versionone in C
which the detail of the subjects had changed, but an essential artistic element
of the original was carried through to the defendants. This was said to
involve extra skill and labour beyond just that involved in creating the
individual frames.
14 The judge was prepared to accept, at para 245,

that
in time
movement of the cue and meter must be considered as being reected in a
D
series of still shots and like must be compared with like, but none the less
held there was no infringement.
15 Mr Carr, by a respondents notice, challenged that assumption. He
submitted that a series of still images, whether created by drawing for a
cartoon lm or by a computer, was not in itself anything more than a series
of frames, each of which would have its own copyright and no more. No


extra copyright work or protection is created by having a series. Putting it E
another way, a series of stills is just that.
16 I think that must be right.

Graphic work is dened as including all
the types of thing specied in section 4(2) which all have this in common,
namely that they are static, non-moving. A series of drawings is a series of
graphic works, not a single graphic work in itself. No-one would say that
the copyright in a single drawing of Felix the Cat is infringed by a drawing of
Donald Duck. A series of cartoon frames showing Felix running over a cli› F
edge into space, looking down and only then falling would not be infringed
by a similar set of frames depicting Donald doing the same thing. That is in
e›ect what is alleged here.
17 This reasoning is supported by the fact that Parliament has
specically created copyright in moving images by way of copyright in lms.
If Mr Howe were right, the series of still images which provides the illusion G
of movement would itself create a further kind of copyright work protecting
moving images. It is unlikely that Parliament intended this.
18 So I think the case on artistic works falls at the rst hurdle, given the
concession that there is no frame-for-frame reproduction.

Reproduction of a substantial part

H
19 If it got as far as the second hurdle, the case would fall there toono
reproduction of a substantial part. The judge so held, at para 245 for Trick
Shot and at para 252 for Jackpot Pool. Mr Howe rst has to overcome the
di–culty that he is asking us on appeal to take a di›erent view from that of
the trial judge as to what amounts to a

substantial part. That brings him
 1039
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A right up against the clear direction from the House of Lords in Designers
Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC)
[2000] 1 WLR 2416 that the Court of Appeal should be very chary of doing
so.
20 Thus Lord Bingham of Cornhill (with whom the rest of the House
agreed) said, at p 2418:

It was not for the Court of Appeal to embark on the
issue of substantiality afresh, unless the judge had misdirected himself, which
B
in my opinion he had not . . . See also per Lord Ho›mann, at p 2421.
21 Mr Howe contended that the judge had indeed misdirected
himselfin two ways, on the facts and as a matter of law. As to the facts, he
relied upon a passage in the evidence of Mr Starling, the designer of Jackpot
Pool. It was about the

animation cycle. The judge records this [2006]
RPC 379, paras 231—232:
C


231. In early December Mr Wilson and Mr Burns arranged for Pocket
Money to be brought into the o–ce where it stayed for ve or six days.
Mr Starling played the game solidly for one day and reached the
conclusion that it was not su–ciently skill-based. He wanted to produce
a game which was more realistic. He recalled nding the level of control
obtained by the rotary controller impressive.
D

232. Under cross examination he accepted that he denitely noticed
other aspects of the game. In particular, he limited the length of the line
of dots of the sight line having seen Pocket Money and he also noticed the
combination of cue, line of dots and cue pulsing in and out in time with
the power meter. He accepted that having seen the game he
tied the
features that I already had in my mind into the game and that this
solved
all the problems.
E
22 The submission was that that which

solved all the problems must
be a substantial part of Pocket Money. Mr Howe developed the argument:


When you talk about an idea that consists in essence of using a
number of features in combination, it is possible to look at that from two
points of view. One is to say it is just the idea of combining things. The
F other way to look at it is to say what you have created by way of
expression in the program is a combination of features, and that
combination is what you should look at. Ask whether that is a substantial
part of the copyright work if that combination is reproduced in the
defendants work.
Thus, it was argued, the combination represented a signicant part of
G Mr Jones skill and labour and must be a substantial part of the work created
by him.
23 The submission applied also to the case on literary works. I reject it
for reasons given in more detail in relation to them (in short, idea not
expression) but even as a matter of alleged misdirection by the judge it must
failfor the judge clearly took the answer into consideration. So where is
the misdirection?
H
24 Moreover the answer must be seen in context. The

combination is
actually just a construct of Mr Howes argument. After all the idea of a cue
moving round a ball, of a pulsing power meter, of a sight line indicated by
dots or crosses were all commonplace. And the judge held that Mr Starling
knew about all of them before he saw Pocket Money and they had already
1040
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

been developed by him for his game: judgment, para 241. All that was A


taken by Mr Starling was a shortened row of dots (he already had one) and
synchronisation of the pulsing cue with the power meter.
25 As to the law, Mr Howe relied upon what was said by Lord Scott of
Foscote in Designers Guild [2000] 1 WLR 2416, 2435:


There had been no direct evidence of copying and the judges nding
had been based on the extensive similarities between Ixia and Marguerite. B
These similarities, coupled with the opportunity to copy and in the
absence of any acceptable evidence from the defendant as to an
independent provenance for Marguerite, had led the judge to conclude,
on a balance of probabilities, that Marguerite had been copied from Ixia.
If the similarities between the two works were su–cient to justify the
inference that one had been copied from the other, there was, in my
C
judgment, no further part for the concept of substantiality to play.
26 Mr Howe tried to elevate this into a general principlethat
whenever copying has been found it must follow that a substantial part has
been taken. I cannot agree. In many cases a coincidence in the copyright
work and the alleged infringement of small, unimportant, details is an
indication of copying. Thus the

reverse countersink in LB Plastics Ltd v
D
Swish Products Ltd [1979] RPC 551 and the misspellings in Ibcos
Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275
proved the copying. But no-one would say that those details alone meant
that a substantial part of the copyright work had been takenthey are the
starting point for a nding of infringement, not the end point. Lord Scotts
observations must be taken as concerned with the facts of the Designers
Guild case itself, not as laying down any general principle. Actually that is E
clear from what he said, referring as he did to

the two works (my
emphasis). After all in that case it was the overall appearance of the two
works which led to the inference of overall copyingan inference which the
defendants failed to rebut. And the two designs were not just similar overall,
one would serve as a substitute for the other. Here the judge has expressly
rejected nearly all of the allegations of copying, leaving just a rump of a few
ideas which were

derived from or inspired by the copyright work, albeit F
implemented in very di›erent ways. And the games, being di›erent from
one another, are not competitive in the sense that one would do as a
substitute for the other.

The case on a literary work

27 Accordingly I think the appeal in relation to artistic works fails. G
I turn to that in relation to the literary work. This involves EU law since it is
based on Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs (OJ 1991 L122, p 42), (

the Software
Directive). Pursuant to that Directive as implemented in the United
Kingdom, copyright can subsist in a computer program and its preparatory
design material. It was common ground that the UK legislation must be
H
interpreted in accordance with the Directive: see Marleasing SA v La
Comercial Internacional de Alimentacin SA (Case C-106/89) [1990] ECR
I-4135.
28 The UK Act, drafted with the traditional, but wholly unhelpful way
of rewording a Directive, sets out

a computer program and

preparatory
 1041
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A design work for a computer program as though they are entirely di›erent
types of work in which literary copyright can subsist: see section 3(1)(b) and
(c). What article 1(1) of Directive 91/250/EEC actually says is:

the term

computer programs shall include their preparatory design material. That
may not be quite the same thingthe EU legislation appears to contemplate
just one copyright in a computer program; not two, one in the preparatory
work and the other in the program itself. I do not think anything turns on
B
the di›erence here. But one can think of cases where it might. Suppose for
example di›erent authors for the program and its preparatory material.
When does the copyright expireon di›erent dates depending on the death
of the respective author? Or suppose di›erent dealings in the

two
copyrightsis that possible given that the Directive supposes only one
copyright? The rewording, as it nearly always does, throws up room for
C wholly unnecessary uncertainty and argument.
29 Fortunately, nothing turns on the di›erence of language here.
I should, in passing, mention one other di›erence of language pointed out by
Mr Howe. The Directive denes

restricted acts as reproduction

in any
form, in part or in whole: see article 4(a). The UK Act does not say

in part
or in whole. It uses the well-established language

in relation to the work
D
as a whole or any substantial part: see section 16(3)(a). Mr Howe wisely
decided that he could not make any point based on this di›erence of
language. He accepted that although the Directive did not say

substantial
part its meaning must be so limited. Otherwise it would require the
copying of insubstantial parts to be an infringementwhich is so absurd as
to be assuredly wrong.
30 With those preliminary observations I can turn to the main
E arguments. The judge found against the claimants on two distinct, although
related, bases, applicable to both alleged infringements [2006] RPC 379,
paras 247—248:


247. [The similarities found to have been derived] are cast at such a
level of abstraction and are so general that I am quite unable to conclude
that they amount to a substantial part of the computer program. They are
F ideas which have little to do with the skill and e›ort expended by the
programmer and do not constitute the form of expression of the literary
works relied upon.


248. Further, application of the principles explained by Pumfrey J in
Navitaire Inc v easyJet Airline Co Ltd [2006] RPC 111 leads to the same
conclusion. Nothing has been taken in terms of program code or
G
program architecture. Such similarities that exist in the outputs do not
mean that there are any similarities in the software. Further, what has
been taken is a combination of a limited number of generalised ideas
which are reected in the output of the program. They do not form a
substantial part of the computer program itself. Consideration of
article 1(2) of the Software Directive conrms this position. Ideas and
principles which underlie any element of a computer program are not
H protected by copyright under the Directive.

Mere idea, not expression

31 Mr Howe had to face the formidable objection created by article 1(2)
of the Software Directive and recitals 13 and 15 (see post, para 63). To my
1042
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

mind these provisions are abundantly clear. The well-known dichotomy A

between an idea and its individual expression is intended to apply, and does,
to copyright in computer software. When I say

well-known I mean not
just known to copyright lawyers of one country but well-known all over the
world. Recital 15 refers to the protection of the expression of ideas as being


in accordance with the legislation and jurisprudence of the member states
and the international copyright conventions and is clearly a reference to this B
dichotomy. The Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) (OJ 1994 L336, p 213) likewise recognises this
dichotomy: see particularly article 9(2).
32 Mr Howe suggested that the dichotomy was intended to apply only
to ideas which underlie an element of a programwhat he called a

building
block. He cited (as did the judge) what Lord Ho›mann said about the
dichotomy outside the context of computer programs in the Designers C
Guild case [2000] 1 WLR 2416, 2423:


My Lords, if one examines the cases in which the distinction between
ideas and the expression of ideas has been given e›ect, I think it will be
found that they support two quite distinct propositions. The rst is that a
copyright work may express certain ideas which are not protected
because they have no connection with the literary, dramatic, musical or D
artistic nature of the work. It is on this ground that, for example, a
literary work which describes a system or invention does not entitle the
author to claim protection for his system or invention as such. The same
is true of an inventive concept expressed in an artistic work. However
striking or original it may be, others are (in the absence of patent
protection) free to express it in works of their own: see Kleeneze Ltd v E
DRG (UK) Ltd [1984] FSR 399. The other proposition is that certain
ideas expressed by a copyright work may not be protected because,
although they are ideas of a literary, dramatic or artistic nature, they are
not original, or so commonplace as not to form a substantial part of the
work. Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 is a well-
known example. It is on this ground that the mere notion of combining
stripes and owers would not have amounted to a substantial part of the F
plainti›s work. At that level of abstraction, the idea, though expressed
in the design, would not have represented su–cient of the authors skill
and labour as to attract copyright protection.
33 As regards the rst proposition I said much the same thing in Ibcos
Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994]
FSR 275, 291: G

The true position is that where an
idea is su–ciently general, then

even if an original work embodies it, the mere taking of that idea will not
infringe. But if the
idea is detailed, then there may be infringement. It is
a question of degree. The same applies whether the work is functional or
not, and whether visual or literary. In the latter eld the taking of a plot
H
(i e the
idea) of a novel or play can certainly infringeif that plot is a
substantial part of the copyright work. As Judge Learned Hand said,
speaking of the distinction between
idea and
expression in Nichols v
Universal Pictures (1930) 45 F (2d) 119:
Nobody has ever been able to
x that boundary and nobody ever can. 
 1043
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A 34 Mr Howe then submitted that the

idea of the cue pulsing with the
power-meter could not be discounted within Lord Ho›manns rst category
because here we are concerned with copyright in a computer program. You
cannot say the

idea has no connection with the nature of the work. Nor did
it fall within the second category because it was not held

commonplace,
merely

obvious. He sought to bolster the argument by reference to the
B
travaux prparatoires to Directive 91/250/EEC. At the very least, he
submitted, the position was unclear and that we should refer some questions
to the European Court of Justice pursuant to article 234 of the Treaty.
35 I reject all of that. First I think the fact that we are considering a
computer program copyright does not in any way preclude a mere

idea as
to what the program should do from being excluded as having nothing to do
with the nature of the work. The nature of the work is a computer program
C having all the necessary coding to function. The general idea is only faintly
related to thatno di›erent from the relationship of the general idea of a
plastic letterbox draught excluder to the artistic works consisting of the
drawings for a particular excluder in the Kleeneze case [1984] FSR 399.
Indeed I have to say that, as Mr Howe waxed lyrical about the combination
of features in the animation, he sounded more like counsel in a patent case
D than one in a copyright case. Not all of the skill which goes into a copyright
work is protectedthe obvious example being the skill involved in creating
an invention which is then described in a literary work. An idea consisting of
a combination of ideas is still just an idea. That is as true for ideas in a
computer program as for any other copyright work.
36 Nor am I impressed by Mr Howes attempt to limit the dichotomy to


building blocks. He sought to do this by reference to recital 14 which
E refers to

logic, algorithms and programming languages as comprising


ideas and principles. I see no reason to suppose that recital 13 is thereby
limited. Recital 14 is clearly drawn on the basis that the basic position of
recital 13no protection for ideas and principlesapplies also to those
specied matters.
37 The same conclusion is reached if one considers the
F TRIPS Agreement. Although normally a UK Act is not to be construed by
reference to a later international treaty, I note that Lord Ho›mann, in the
Designers Guild case [2000] 1 WLR 2416, 2422—2423, considered the
TRIPS Agreement to be of relevance to our domestic copyright law. Here
the position is much clearer because we are dealing with EU law. The
ECJ has held that the TRIPS Agreement (to which the EU as well as its
member states is a party) is relevant to the construction of earlier
G EU legislation concerned with intellectual property. In Schieving-Nijstad
vof v Robert Groeneveld (Case C-89/99) [2001] ECR I-5851, paras 30 and
35, the court said:


30. In the eld of trade marks, to which the TRIPS Agreement is
applicable and in respect of which the Community has already legislated,
the court has jurisdiction to interpret article 50 of the TRIPS Agreement
H
as, indeed, it has previously had occasion to do (see Herms International
v FHT Marketing Choice BV (Case C-53/96) [1998] ECR I-3603, and
Parfums Christian Dior SA v Tuk Consultancy BV (Joined Cases
C-300/98 and C-392/98) [2000] ECR I-11307). It is therefore
appropriate to recapitulate the principles laid down in that case law.
1044
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

35. Nevertheless, it is apparent from the courts case law that, in a A

eld which the TRIPS Agreement applies and in respect of which the
Community has already legislated, the judicial authorities of the member
states are required by virtue of Community law, when called upon to
apply national rules with a view to ordering provisional measures for the
protection of rights falling within such a eld, to do so as far as possible in
the light of the wording and purpose of article 50 of the TRIPS Agreement B
(see Herms, para 28, and Dior, para 47).
38 Mr Howe sought to escape from the fact that we should construe
the UK Act in accordance with the Software Directive, which should be
construed so far as possible as to conform to the TRIPS Agreement, by a
further submission: that the TRIPS Agreement was only concerned with
minimum standards for intellectual property rights and that its signatories C
were free to provide for greater rights. So, he said, the EU could provide
that copyright protection extended to ideas if it so wanted. Now it is in
general true that a party to the TRIPS Agreement can provide more
extensive protection than the TRIPS Agreement called for: see article 1.
But the concluding words of the rst sentence of article 1 add:

provided
that such protection does not contravene the provisions of this
Agreement. Article 9(2) positively provides that

copyright protection D
shall extend to expressions and not to ideas . . . as such. So in this
instance the TRIPS Agreement lays down a positive rule as to the point
beyond which copyright protection may not go. To protect by copyright
mere ideas as such would contravene the TRIPS Agreement. The
Software Directive must be construed so as to conform to the
TRIPS Agreement and so must be construed as not to protect ideas as E
such.
39 As to the travaux prparatoires, Mr Howe took us through the
following: (i) the original Commission

Proposal for a Council directive on
the legal protection of computer programs COM(88) 816 nalSYN 183
(OJ C 91, 12.04.89, p 4), submitted on 5 January 1989, (89/C91/05); (ii) the
amended proposal COM (90) 509 nalSYN 183 (OJ C 320, 20.12.90,
p 22), submitted on 18 October 1990 (1990/C 320/11); and (iii) the opinion F
of the Economic and Social Committee.
40 Mr Howe was unable to point to any clear unequivocal statement
anywhere suggesting that copyright in computer programs should extend to
ideas. Given that state of a›airs it would be a waste of time to set out all the
material in detail. It is su–cient to record that the submission is based on an
argument by implication from unexplained alterations from the original G
proposal. In particular the original proposal did not use the expression


element of a computer program in proposed article 1.2 but merely to

the
ideas, principles, logic, algorithms or programming languages. I cannot
extract from this any intention to extend protection to ideas provided they
are not

elements.
41 I am reinforced in my view by the fact that the Economic and Social
H
Committee (whose report is specically recited in the Directive as being a
document to which the Council had regard in making the Directive) clearly
did not think the proposal was limited as suggested by Mr Howe. It said
tersely:

There is no dispute that
ideas and principles are outside the
protection of the law of copyright.
 1045
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A 42 So there is no help for Mr Howe in the travaux prparatoires.

I would add generally that travaux prparatoires, if not bang on the point,
seldom help. If the meaning of the ultimate document is ambiguous, or
obscure, then, even if the travaux prparatoires are admissible, there is no
point in trawling through them unless they are clear as to what was intended
and meant. Constructing arguments around unexplained changes, passages
B
in themselves ambiguous, or mere possible hints as to what would have been
intended if the actual point in issue had actually been addressed, is just a
waste of time. I said in Dyson Ltd v Qualtex (UK) Ltd [2006] RPC 769,
para 11:


In the context of construing an international treaty by reference to the
travaux prparatoires to nd a denite legal intention Lord Steyn said:
C

Only a bulls-eye counts (E›ort Shipping v Linden Management [1988]
AC 605, 625). Much the same goes for trying to ascertain such an
intention from a White Paper which precedes legislation.
That is equally applicable to all documents which fall to be construed in the
light of admissible travaux prparatoires. There is no point in relying upon
travaux prparatoires which are not directly in pointyou just substitute
D the puzzle posed by the actual language to be construed by another puzzle
about other language at rst or even second remove.
43 So I reject Mr Howes

only ideas which are elements are excluded
argument. Actually I do not see, even if it had been right, why the animation
cycle should not be regarded as

an element. After all it is not the game
itself. It is an element of the game and so of its computer program. That it is
only an element is shown by the fact that it could be transposed to any other
E snooker/pool computer game as an element of that game.
44 Accordingly I think the appeal on literary copyright fails on the
simple ground that what was found to have inspired some aspects of the
defendants game is just too general to amount to a substantial part of the
claimants game. The judges evaluation, far from being wrong in principle,
was right when he said:

They are ideas which have little to do with the skill
F and e›ort expended by the programmer and do not constitute the form of
expression of the literary works relied upon.
45 I also think the appeal fails on the more specic basis (also accepted
by the judge) of the principles applied by Pumfrey J in Navitaire Inc v easyJet
Airline Co Ltd [2006] RPC 111.
46 The facts there were stronger than in the present cases, yet the
claimants lost. easyJet wanted to substitute its existing airline booking
G
program with another because it had fallen out with Navitaire, the owner of
the copyright in the existing program. It commissioned the second
defendant to produce a substitute which would look and feel like its
predecessor. So far as possible, users were not to notice any di›erence when
they used the new program. Without in any way using or even having access
to the source code of Navitaire, this was achieved.
H 47 Pumfrey J held that there was infringement of the artistic copyright
in some of the

buttons of the claimants program: see para 131. But he
rejected the main claim. He said, at paras 125—127, 129—130:


125. This does not answer the question with which I am confronted,
which is peculiar, I believe, to computer programs. The reason it is a new
1046
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

problem is that two completely di›erent computer programs can produce A

an identical result: not a result identical at some level of abstraction but
identical at any level of abstraction. This is so even if the author of one
has no access at all to the other but only to its results. The analogy with a
plot is for this reason a poor one. It is a poor one for other reasons as well.
To say these programs possess a plot is precisely like saying that the book
of instructions for a booking clerk acting manually has a plot: but a book
B
of instructions has no theme, no events, and does not have a narrative
ow. Nor does a computer program, particularly one whose behaviour
depends upon the history of its inputs in any given transaction. It does
not have a plot, merely a series of pre-dened operations intended to
achieve the desired result in response to the requests of the customer.


126. The view in favour of the Navitaire case is expressed concisely
by the authors of The Modern Law of Copyright and Designs, 3rd ed C
(2000) (I have assumed that when they speak of
obtains . . . from the
original program they do not mean obtain directly, but indirectly from
watching the program work), at para 34.64:
For instance, the writing of
a nancing program may require as part of the task a careful elucidation
of the relevant tax regulationsso that they may be reduced to a series of
unambiguous statementsand it will be evident to any lawyer that this
D
alone will probably involve a very large amount of work. A competitor
might write a program of his own in a di›erent computer language and
arranged in a di›erent way and with many improvements of his own but
if he obtains the rules for calculating the tax from the original program
instead of working these out for himself it is hard to see why he should not
be considered a plagiarist.


127. There is a counter-example that throws some light on the nature E
of the problem. Take the example of a chef who invents a new pudding.
After a lot of work he gets a satisfactory result, and thereafter his
puddings are always made using his written recipe, undoubtedly a literary
work. Along comes a competitor who likes the pudding and resolves to
make it himself. Ultimately, after much culinary labour, he succeeds in
emulating the earlier result, and he records his recipe. Is the later recipe
F
an infringement of the earlier, as the end result, the plot and purpose of
both (the pudding) is the same? I believe the answer is no.


129. The questions in the present case are both a lack of substantiality
and the nature of the skill and labour to be protected. Navitaires
computer program invites input in a manner excluded from copyright
protection, outputs its results in a form excluded from copyright
protection and creates a record of a reservation in the name of a particular G
passenger on a particular ight. What is left when the interface aspects of
the case are disregarded is the business function of carrying out the
transaction and creating the record, because none of the code was read or
copied by the defendants. It is right that those responsible for devising
OpenRes envisaged this as the end result for their program: but that is not
relevant skill and labour. In my judgment, this claim for non-textual
H
copying should fail.


130. I do not come to this conclusion with any regret. If it is the
policy of the Software Directive to exclude both computer languages and
the underlying ideas of the interfaces from protection, then it should not
be possible to circumvent these exclusions by seeking to identify some
 1047
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)
Jacob LJ

A overall function or functions that it is the sole purpose of the interface to

invoke and relying on those instead. As a matter of policy also, it seems to
me that to permit the
business logic of a program to attract protection
through the literary copyright a›orded to the program itself is an
unjustiable extension of copyright protection into a eld where I am far
from satised that it is appropriate.
B 48 Mr Howe attacked that. I quote his skeleton argument:


this analogy is a poor one. The reason is that the rst chef has
deployed two quite distinct types of skill and labour. The rst is the skill
of devising a recipe, a skill which on no view forms part of the skill and
labour protected by copyright in literary works. The second is skill and
labour in reducing the recipe he has devised to written form. A copyist
C who copies from his pudding rather than from his recipe book may
appropriate the former skill and labour but none of the latter. By
contrast, a copyist who copies the function of a computer program to
write his own program to achieve the same results is clearly appropriating
part of the skill and labour expended in designing the program.
49 He further developed the argument basing himself on the recital 7 of
D the Directive. This says:



computer program . . . also includes preparatory design work
leading to the development of a computer program provided that the
nature of the preparatory work is such that a computer program can
result from it at a later stage . . .
E He asked us to suppose a case where there are two clear stages in the making
of a programa rst stage where the designer sets out all the things he wants
the program to be able do and a second stage (which may be by a di›erent
person) where the actual program code is written. Mr Howe contended that
the rst stage was intended to be protected as such, even if it consisted only
of ideas as to what the program should do. Going back to the analogy, the


preparatory work for the program is like the skill of devising the recipe
F and the actual program writing like the reduction of the recipe to written
form. The di›erence, he submitted, is that for computer programs, unlike
the recipe, the preparatory work is to be protected.
50 I reject the argument. The reason is simple. 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 programs as a whole (which
G 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
workthe expression of the designs which are to go into the ultimate
program, not the ideas themselves.
51 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
H
copy that. But they could use the same idea. Similarly and more generally, a
written work consisting of a specication of the functions of an intended
computer program will attract protection as a literary work. But the
functions themselves do not. Of course to someone familiar with the prior
English law it is self-evident that copyright could subsist in such a
1048
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR
Jacob LJ

description. The fact that a work can get copyright even if mundane, is old A
and familiar to an English lawyer. But the Directive needed to say that
protection as a literary work should be provided for preparatory design
work because not all member states under their existing laws necessarily
provided that. That is the whole point of the Directiveand the clear reason
for it is recited in article 1.
52 So I think Mr Howes attack on the Navitaire case [2006] RPC 111 B
fails. The reasoning in the Navitaire case provides a second reason for
dismissing this appeal. Pumfrey J was quite right to say that merely making
a program which will emulate another but which in no way involves copying
the program code or any of the programs graphics is legitimate.
53 Finally Mr Howe suggested the law was su–ciently uncertain as to
warrant a reference being made to the European Court of Justice. No less
than six elaborate draft questions were supplied. I do not think it is necessary C
to make any reference to resolve this case. It is wholly unrealistic to suppose
that the European Court of Justice would hold that copyright protection was
to be given to ideas at such a high level of abstraction as those in this case.
54 I would only add this. Both sides submitted that this case had
signicance for the computer games (and computer program writing)
industry. Mr Howe submitted that if the decision below is upheld there is no D
e›ective protection for games against copying of the game where a party
copies the rules of a game but not its graphics. Mr Carr submitted that not
all things are covered by copyright, that most if not every work is, to some
extent, inuenced or derived from other works. So it is very important that
copyright is not allowed to intervene to stie the creation of works that are
actually very di›erent, as the individual games are here.
55 I agree with Mr Carr. If protection for such general ideas as are E
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.
LLOYD LJ F
56 I agree.

SIR ANDREW MORRITT C

57 I also agree.

APPENDIX
The legislation G

For artistic works

58 So far as is relevant here, section 4 of the Copyright, Designs and
Patents Act 1988 denes artistic works and graphic work as follows:


(1) In this Part
artistic work means(a) a graphic work . . .
irrespective of artistic quality . . . H


(2) In this Part . . .
graphic work includes(a) any painting,
drawing, diagram, map, chart or plan, and (b) any engraving, etching,
lithograph, woodcut or similar work . . .
59 Additionally, section 9 provides:
 1049
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)

A

(3) In the case of a literary, dramatic, musical or artistic work which is

computer-generated, the author shall be taken to be the person by whom
the arrangements necessary for the creation of the work are undertaken.
And section 178 reads:


Computer-generated, in relation to a work, means
that the work is generated by computer in circumstances such that there is no
human author of the work.
B
For literary works
60 Section 3 of the 1988 Act, as amended by regulation 3 of the
Copyright (Computer Programs) Regulations 1992 (SI 1992/3233),
provides:


(1) In this Part
literary work means any work, other than a
C dramatic or musical work, which is written, spoken or sung, and
accordingly includes . . . (b) a computer program, (c) preparatory design
material for a computer program . . .

For infringement
61 Section 16 of the Act provides:
D


The acts restricted by copyright in a work


(1) The owner of the copyright in a work has, in accordance with the
following provisions of this Chapter, the exclusive right to do the
following acts in the United Kingdom(a) to copy the work (see section
17) . . .


(3) References in this Part to the doing of an act restricted by the
E copyright in a work are to the doing of it(a) in relation to the work as a
whole or any substantial part of it . . .
62 Section 17 expands on the meaning of

to copy:


Infringement of copyright by copying


(1) The copying of the work is an act restricted by the copyright in
F
every description of copyright work; and references in this Part to copying
and copies shall be construed as follows.


(2) Copying in relation to a literary, dramatic, musical or artistic
work means reproducing the work in any material form. This includes
storing the work in any medium by electronic means.

The Software Directive

G
63 The 1992 Regulations implement Council Directive 91/250/EEC of
14 May 1991 on the legal protection of computer programs (OJ 1991 L122,
p 42). It follows (and was not disputed) that these provisions of the 1988
Act must be interpreted in accordance with the Directive. I therefore set out
its relevant recitals (adding numbers) and provisions:


1. Whereas computer programs are at present not clearly protected in
H
all member states by existing legislation and such protection, where it
exists, has di›erent attributes . . .


4. Whereas certain di›erences in the legal protection of computer
programs o›ered by the laws of the member states have direct and
negative e›ects on the functioning of the common market as regards
1050
Nova Productions Ltd v Mazooma Games Ltd (CA) [2007] Bus LR

computer programs and such di›erences could well become greater as A

member states introduce new legislation on this subject;


5. Whereas existing di›erences having such e›ects need to be
removed and new ones prevented from arising, while di›erences not
adversely a›ecting the functioning of the common market to a substantial
degree need not be removed or prevented from arising;


6. Whereas the Communitys legal framework on the protection of B
computer programs can accordingly in the rst instance be limited to
establishing that member states should accord protection to computer
programs under copyright law as literary works and, further, to
establishing who and what should be protected, the exclusive rights on
which protected persons should be able to rely in order to authorise or
prohibit certain acts and for how long the protection should apply;


7. Whereas, for the purpose of this Directive, the term
computer C
program shall include programs in any form, including those which are
incorporated into hardware; whereas this term also includes preparatory
design work leading to the development of a computer program provided
that the nature of the preparatory work is such that a computer program
can result from it at a later stage . . .


13. Whereas, for the avoidance of doubt, it has to be made clear that D
only the expression of a computer program is protected and that ideas
and principles which underlie any element of a program, including those
which underlie its interfaces, are not protected by copyright under this
Directive;


14. Whereas, in accordance with this principle of copyright, to the
extent that logic, algorithms and programming languages comprise ideas
E
and principles, those ideas and principles are not protected under this
Directive;


15. Whereas, in accordance with the legislation and jurisprudence of
the member states and the international copyright conventions, the
expression of those ideas and principles is to be protected by
copyright . . .


20. Whereas the unauthorised reproduction, translation, adaptation F
or transformation of the form of the code in which a copy of a computer
program has been made available constitutes an infringement of the
exclusive rights of the author . . .

Article 1


Object of protection G

1. In accordance with the provisions of this Directive, member states

shall protect computer programs, by copyright, as literary works within
the meaning of the Berne Convention for the Protection of Literary and
Artistic Works [(1971) (Cmnd 5002)]. For the purposes of this Directive,
the term
computer programs shall include their preparatory design
H
material.


2. Protection in accordance with this Directive shall apply to the
expression in any form of a computer program. Ideas and principles
which underlie any element of a computer program, including those which
underlie its interfaces, are not protected by copyright under this Directive.
 1051
[2007] Bus LR Nova Productions Ltd v Mazooma Games Ltd (CA)

A

3. A computer program shall be protected if it is original in the sense

that it is the authors own intellectual creation. No other criteria shall be
applied to determine its eligibility for protection.

Article 4


Restricted acts
B


Subject to the provisions of articles 5 and 6, the exclusive rights of the
rightholder within the meaning of article 2, shall include the right to do or
to authorize: (a) the permanent or temporary reproduction of a computer
program by any means and in any form, in part or in whole. Insofar as
loading, displaying, running, transmission or storage of the computer
program necessitate such reproduction, such acts shall be subject to
C authorization by the rightholder . . .

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

64 Also of importance in the debate are articles 1 and 9 of the
TRIPS Agreement (OJ 1994 L336, p 213) which forms Annex 1C to the
Agreement establishing the World Trade Organisation signed in Morocco on
D 15 April 1994 by representatives of the Community and its member states.

Article 1

Members shall give e›ect to the provisions of this Agreement.

Members may, but shall not be obliged to, implement in their law more
E
extensive protection than is required by this Agreement, provided that
such protection does not contravene the provisions of this Agreement.
Members shall be free to determine the appropriate method of
implementing the provisions of this Agreement within their own legal
system and practice.

Article 9
F


1. Members shall comply with articles 1 through 21 of the Berne
Convention (1971) and the Appendix thereto. However, members shall
not have rights or obligations under this Agreement in respect of the
rights conferred under article 6bis of that Convention or of the rights
derived therefrom.
G


2. Copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such.
Appeal dismissed.
Permission to appeal refused.

11 June 2007. The Appeal Committee of the House of Lords (Lord

H Ho›mann, Lord Walker of Gestingthorpe and Lord Neuberger of
Abbotsbury) dismissed a petition by the claimant for leave to appeal.
Solicitors: Kuit Steinart Levy, Manchester; Wragge & Co.
CMT