Anna Caddick considers two recent decisions on the question of substantiality in copyright infringement
Two March 2007 decisions of the Court of Appeal grapple with the thorny issue in copyright law of the idea/expression dichotomy and the threshold of substantiality. Both judgments, Baigent v Random House Group Ltd [2007] EWCA Civ 247, [2007] All ER (D) 456 (Mar) and Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219, [2007] All ER (D) 234 (Mar), are pro-defendant, favouring creativity over copyright owners. Lord Justice Jacob, giving the judgment in Nova, said:
“If protection for [such] general ideas…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.”
While few argue with the decisions on their particular facts, it is important to consider the policy line drawn and the consequent freer rein for defendants. The tie between copying and substantial part, which tentatively existed after the
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