Copyright in the computing gaming industry transcript

Topic: Nova Productions Limited and Mazooma Games Limited and others - the implications for the computer games industry going forward

Speakers: Solicitors Shauneen Kelly and Nicola Phillips - Technology, Media & Telecoms, Denton Wilde Sapte

Shauneen – Hello, my name is Shauneen Kelly and today I'm here with my colleague, Nicola Phillips and we're both from the TMT department at Denton Wilde Sapte. This month's podcast is on the subject of the recent Court of Appeal decision between Nova Productions Limited and Mazooma Games Limited and others. First of all, I will just take you through a brief outline of the background to the case and then we will discuss the implications that the Court of the Appeal decision will have for the computer games industry going forward.

In this case Nova who were the Claimants are designers, manufacturers and sellers of video arcade games and one of the most popular games is called "Pocket Money" and this is a skill with prizes game and is based on the concept of a pool game. Nova brought two actions for a breach of copyright in this "Pocket Money" Game against the first Defendant, Mazooma, in relation to its "Jackpot Pool" game and the second against Bellfruit in relation to its "Trick Shot" game. Both of the Defendants' games were based around the game of pool. Nova claimed that it had copyright in the "Pocket Money" game and it claimed that three types of copyright had been infringed. Nova claimed infringement of firstly its artistic copyright. It claimed it had artistic copyright in the bitmap graphics and the frames generated and displayed to the end user. It also claimed infringement of literary copyright in the actual notes, design notes used to make the game and in the programme itself. It claimed infringement of dramatic copyright in the game and also film copyright in the game. Firstly, Nicola, could you just take us through why this is such an important case.

Nicola – Well I think that this case has got probably two main effects. Firstly, in the area of piracy and protection for computer games generally and secondly, which I think you will probably want to consider further is the implication for copyright and in particular the ideas versus expression dichotomy that exists there.

Shauneen – So why is it important in relation to piracy?

Nicola – Well I mean piracy is a huge problem for the industry here. A recent study said that 27% of all UK software is pirated. We have had peer to peer issues, digital rights or management circumvention. Just look at the recent I-tunes issues and various other pirated games or software. In 2005, piracy itself was estimated to cost the global computer industry a grand total of about $34 billion.

Shauneen – So how do you think people can best deal with this?

Nicola – Well I think they need to understand what they have got and what measures can be put in place to protect that. I think, hopefully, as we talk a bit more about that, that will become clear. In particular, I think it is becoming clear that copyright isn't going to be a method by which computer gamers can protect someone essentially taking their idea and using it.

Shauneen – I think that becomes quite clear through the Court of Appeal decision in the Nova case. Just go maybe into a bit more detail about what the Court decided. I think basically that the first thing is that they recognised that artistic and literary copyright existed as Nova had claimed it did, but they dismissed any notion that dramatic copyright or film copyright could exist in a computer game.

Nicola – So what they were trying to say though, was what exactly? That playing pool or the motion of the cue was some sort of dramatic copyright?

Shauneen – Yes, basically, they were saying that as all the frames ran together, the interaction of the player in the computer game created a dramatic copyright but the Court gave quite short shrift to that actually. What they said was that there were any number of outcomes that were influenced by the way that the player played the game. It wasn't a set series of images that flowed together in a way that could be foreseen. It depended very much on what action the player took and how the player played the game and that was one of the main reasons that they dismissed any notion that there could be a dramatic copyright in a computer game.

Nicola – So that leaves us with the artistic copyright and literary copyright claims then. What happened there?

Shauneen – Well the Court did say that artistic and literary copyright did exist in all of the aspects of the game that Nova claimed that they existed in. In terms of it being an artistic work the Court did find that each individual frame was an artistic work in its own right and it was an artistic work by virtue of it being a graphic work under the Copyright, Design and Patents Act. However, the Court found that if all of the individual frames were run together as a series, that series in itself would not constitute an individual artistic work. The common theme in the Copyright, Design and Patents Act, when it lists individual works that could be an artistic work, is that each of the works are static and non-moving. So a series of drawings run together in the way that it was done in the computer game couldn't possibly constitute a graphic work.

Nicola – So that's quite interesting. So a set of drawings or designs for a game even though they seem to flow together when you play them don't actually constitute one single copyright, there will be lots of different divisions within the copyright work.

Shauneen – Yes, in each individual frame rather than in the series. So in terms of the literary work Nicola, what did the Court decide there?

Nicola – Well this is a case where although the Court found that there was a literary work in the computer programme, "Pocket Money". This copyright existed both in the code for the game and also in the preparatory design materials for that game. Although there is quite an interest point there as to how this interacts with the Software Directive because the Copyright, Designs and Patents Act seems to hold that the two are separate copyrights, whereas the software directive holds that it is all one. But that wasn't the point of this case; in fact the Court of Appeal said that they would leave that for another day. So in this case we had the literary work which was for the code and the design materials. However, the Court found that neither of these had been infringed by the Defendants. The reasoning behind this was in part that there wasn't any copying. What you saw on screen was a very similar game but it wasn't a result of the same code and the design materials were entirely different. So what had been copied was the idea behind the game, a game of playing pool, rather than the actual expression of that game in the code and materials themselves.

Shauneen – So Nicola is that a change from the current law or the law that stood before the Court of Appeal Decision?

Nicola – Well actually it just seems to confirm the case Navataire v. EasyJet, which was an airline booking system case. There does not appear to be anything particularly new and different. It is a long established basis of copyright law that there is a division between idea and expression. It is just finding that division sometimes is quite difficult. However, this is a very interesting practical example of where that lies and particularly for the field of computer games.

Shauneen – So I guess the bottom line is it is very difficult to get copyright protection for computer games?

Nicola – I think as a whole that's right. Obviously, the copyright exists in the individual elements so within the object and source code, within the graphics as individual frames as you pointed out earlier and within the design notes and materials there. There would also be, not in this case but, possible music and sound recording copyrights but these are all individual copyright works and you are quite right, I mean there is no copyright over the entire work as a single thing, a single entity. And that does make it difficult for computer games programmers or designers, manufacturers and sellers.

Nicola - So are patents a possibility for protecting computer software do you think?

Shauneen – Well interestingly actually, in the US, software can be protected by software patents. Unfortunately, here in the UK, software is expressly excluded from patent protection because it falls within the copyright regime. Unless, of course, the programme has a particular technical effect. A few people have tried to argue in the Courts that their programme has a technical effect but the Courts haven't been very willing to grant patent protection on that basis. Can you think of any other ways that people might think about protecting their rights and computer software?

Nicola – Well I think that people should be aware that there are other areas of law which might benefit them. For example, confidentiality. If you put in place a confidentiality agreement with the people that you are disclosing your information to prior to publication, then that's going to help you. The only problems are that once you publish it or once you take your product to market then it's all out in the open and someone copying your idea, as we have seen in this case, isn't going to be infringing your copyright in the software. It is also very important to keep control of who you are licensing to so to make sure that you know what rights are available to you and that you have got control over those rights. Again, that's limited in scope to the people with whom you have direct licences.

Shauneen – It would probably also be useful if people who were involved in production kept very detailed notes on the conception and design process of their games as well.

Nicola – I think that's totally right. I think that's always going to be one of those things which is of practical benefit to everyone involved and not least in evidentiary terms if you do end up in Court.

Shauneen – But as long as people are aware of the actual limitations of the copyright protection.

Nicola – Yes and as we have seen here that's not necessarily as wide as perhaps some computer software developers would like it to be but, then the argument on the other side is that we are not stifling creativity, we are allowing the market to progress. Perhaps what's left is if you could give us a summary on the effect on the law that this case has had?

Shauneen – Well, I think, although the Court of Appeal decision has been a very important restatement of the law it has not really added much and I think the bottom line is that people need to be aware of the limitations of copyright protection and intellectual property right protection in general in the field of computer software and computer games.