The IPKat is trying hard to get excited about the Da Vinci Code decision, but it’s a bit difficult since, to his mind, the result was a foregone conclusion. However, he’s had the following thoughts.
The take home message concerning Peter Smith J’s judgment is ‘right answer, wrong reasoning’. In fact, the first instance judge comes in for some pretty staunch criticism, with Mummery LJ commenting:
The IPKat wonders how Peter Smith J had time to devise a cryptic code, but not to properly assimilate the evidence.
"The point which I wish to highlight is that the debate in this court about what findings the judge in fact made could have been avoided if the judgment had set out the facts, the law and the conclusions in a more orderly way. I appreciate that there were time pressures on the judge, who did well to produce such a long and complex reserved judgment in the short time that he did. Following the cross examination of witnesses there was a lot of evidence to consider in addition to detailed comparisons between the two works (and other works) and bulky written submissions from the parties on fact and law. The judgment would have benefited from a longer period for reflection and from spending more time on the assimilation and compression of all this material, on sorting out and setting out the issues for decision and on presenting the conclusions and supporting reasoning".
There’s also bad news for lovers of certainty, with Mummery LJ stating:
"The 1988 Act does not define "a substantial part" or even indicate what factors are relevant to substantiality. I do not think that there is any real point in asking: what does "a substantial part" mean? That sort of question is only a path to a dictionary and to the dubious substitution or addition of other words which do not help to answer the crucial question of fact: is DVC a copy of "a substantial part" of HBHG?"He goes on to say that taking a collection, selection, arrangement or structure which is original can infringe, even if the subject-matter of the collection, selection, arrangement or structure does not attract copyright. However, taking items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work will not infringe. As the judge concedes, the dividing line isn’t always readily apparent, but the fact that there has been investment in establishing a fact won’t tip the balance.
As noted previously, their Lordships reject the idea that, to count as a substantial part, what is taken must independently qualify for copyright protection. Instead, the dividing line is said to be the idea/expression dichotomy. The IPKat is a little disappointed by this. He was rather hoping for the development of an underlying principle of copyright, similar to the essential function in trade mark law, where the ‘point’ of the IP right (viz, to protect skill, labour and judgment) would be identified and used to define both subsistence and infringement.
Finally, Lloyd LJ comprehensively rejects any role for the defendant’s intention in establishing infringement. Instead, the impact of this factor is limited to the assessment of damages.