Playing the game: Nova/Mazooma in the Court of Appeal

The Court of Appeal for England and Wales (Sir Andrew Morritt C and Lords Justices Jacob and Lloyd) has given its decision in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd [2007] EWCA Civ 219, an appeal from the decision of Kitchin J which was noted by the IPKat here.

In short, this appeal concerned two actions. In the first, Nova designed, made and sold arcade video games including 'Pocket Money' and said that another game, 'Jackpot Pool', infringed its copyright in 'Pocket Money'. 'Jackpot Pool''s software was designed by Mazooma, who supplied it to Games Network, who copied and supplied it to Gamestec. Gamestec ran installed 'Jackpot Pool' on its coin-operated terminal. Mazooma also supplied the same software to Inspired, who copied and supplied it to the Leisure Link, who installed it on their coin-op terminal. In the second action Nova said 'Pocket Money' was infringed by a coin operated video game called 'Trick Shot', which Bell-Fruit put into its own machines. Nova did not accuse any of the defendants of copying the software code of 'Pocket Money', but said the defendants infringed their copyright by copying their game's screen appearance (the 'outputs'). When asked to identify each particular similarity relied upon and to say how it was the result of an infringing act, Nova served a schedule of similarities and marked up screen shots to identify the relevant features.

Kitchin J dismissed all Nova's claims on the basis that there had been no reproduction of any of its work.

* There was no substantial taking of any artistic skill and effort, program code or program architecture and the mere fact that there were similarities in the game's outputs did not raise an implication that there were similarities in the software.

* What had been taken was a combination of a limited number of general ideas that were reflected in the output of the program, but those ideas did not form a substantial part of Nova's computer program itself.

* The visual appearance and the rules of the games were all very different. Even though there were some similarities, each of the games looked and played (felt?) in a very different way.

After an unsuccessful attempt to have the case referred to the European Court of Justice for a preliminary ruling (since, whatever the ECJ said, Nova would still lose on the facts), Nova appealed to the Court of Appeal which dismissed its appeal yesterday.

According to Nova,

* although there was no copying of individual frames of graphics, there was a series of graphics showing the movement of the cue and ball that had copied an essential artistic element of its game;

* Kitchin J had misdirected himself on what constituted a "substantial part" of the copyright work and that, having found there to have been some copying, he should have found that a substantial part of Nova's work had been taken;

* only ideas that were an "element" of the program were excluded from copyright protection by the Software Directive.

The Court of Appeal dismissed the appeal. In particular it ruled that

* "graphic work", for the purposes of protectable copyright subject-matter, was defined as including all the types of things specified in the Copyright, Designs and Patents Act 1988 s.4(2), all of which shared the common factor that they were static and non-moving: a series of drawings was a series of graphic works, not a single graphic work in itself and no extra copyright work or protection was created by a series.

* there was no general principle that, whenever copying was found to have occurred, it must follow that a substantial part of the copied work had been taken.

* the existence of coincident features in the copyright work and the alleged infringing work of small, unimportant details was a starting point indicating copying, but those details alone would not mean that there had been substantial copying and Kitchin J had not therefore misdirected himself on this point.

* the Software Directive was clear that, for computer programs as a whole (which included their preparatory design work), "ideas" were not protected. This conclusion was reinforced by TRIPs, which laid down a positive rule that copyright protection must not extend to ideas.

Left: computer addict, found on Concurring Opinions

* the fact that the court was considering a computer program did not 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. This is because the nature of the work was that it was a computer program having all the necessary coding to function and the general idea was only faintly related to that. An idea consisting of a combination of ideas remained no more than an idea and was not thus capable of copyright protection.

* even though Nova's ideas inspired some aspects of the allegedly infringing games, those ideas were too general to amount to a substantial part of Nova's work.

* merely making a program that emulated another but which in no way involved copying the program code of any of the program's graphics was legitimate (applying Pumfrey J's decision in Navitaire Inc v Easyjet Airline Co Ltd.

The IPKat really feels that this was a non-starter and wonders whether the Court of Appeal felt obliged to go into such patiently helpful detail in order to treat copyright protection for computer programs in the same sort of detail as it dealt with patent protection in the recent Macrossan ruling (see earlier IPKat posts here and here). Merpel says, what's the betting that the judges had a jolly good time playing with the games, the better to familiarise themselves with the relevant subject-matter.

Computer games addiction here
Writing a computer game here
Writing a book about computer games here