Court of Appeal confirms the decision of Kitchen J in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219

April 2007

Video games, television

This action revolves around claims by Nova that the defendants copied elements of arcade games it had designed, made and sold. 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 in a very different way.


Nova’s appeal (after a failed reference to the European Court of Justice) was that:

* 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.

* 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 ). (Kitchen J) and see Law Updates March 2006 (article by Tom Frederikse) (Court of Appeal)

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