playing game novamazooma in court of

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