Da Vinci Code newsflash

In case you missed this morning's update on the IPKat's post on Monday, the Court of Appeal for England and Wales has today dismissed the appeal of Michael Baigent and Richard Leigh against the decision of Mr Justice Peter Smith to dismiss their copyright infringement claim against Random House in the Da Vinci Code case (see earlier IPKat posts here , here , here and here). The ruling in full, leading with the judgment of Lord Justice Lloyd, is available on BAILII [2007] EWCA Civ 247.

More comment on this lengthy decision will follow. This note confines itself to citing, without further discussion, the words spoken by Lord Justice Mummery at paragraphs 131 and 132 in his concurring judgment:

"As Lord Reid observed in Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273 at 277, you can reach a wrong result in a copyright case by dividing up the original copyright work into separate parts and then asking whether the separate parts standing on their own could be the subject of copyright. In my judgment, this criticism of the destructive dissection of the original copyright work is as valid when considering the issue of infringement as it is when considering the issue of subsistence of copyright discussed by Lord Reid in that part of his opinion.

The point is so fundamental to the proper conduct of copyright litigation that it needs to be spelt out. On the issue of subsistence it is wrong to divide up the whole copyright work into parts and to destroy the copyright in the whole work by concluding that there is no copyright in the individual segments. Similarly, on the issue of infringement, it is wrong to take the parts of the original copyright work that have been copied in the alleged infringing work, to isolate them from the whole original copyright work and then to conclude that "a substantial part" of the original copyright work has not been copied because there was no copyright in the copied parts on their own".