Day: April 10, 2007

Da Vinci Code Appeal: judgment in full

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Neutral Citation Number: [2007] EWCA Civ 247

Case No: A3 2006/0971

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY

MR JUSTICE PETER SMITH

[2006] EWHC (Ch) 719

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28 March 2007

Before:

LORD JUSTICE MUMMERY

LORD JUSTICE RIX

and

LORD JUSTICE LLOYD

– – – – – – – – – – – – – – – – – – – – –

Between:

(1) MICHAEL BAIGENT

(2) RICHARD LEIGH Claimants

Appellants

– and –

THE RANDOM HOUSE GROUP LIMITED Defendant

Respondent

– – – – – – – – – – – – – – – – – – – – –

– – – – – – – – – – – – – – – – – – – – –

Jonathan Rayner James Q.C. and Andrew Norris

(instructed by Orchard Brayton Graham LLP) for the Appellants

John Baldwin Q.C. and James Abrahams

(instructed by Arnold & Porter (UK) LLP) for the Respondent

Hearing dates: 16 – 19 January 2007

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

Lord Justice Lloyd:

Introduction

1. The Claimants are two of the three authors of a book published in 1982, The Holy Blood and the Holy Grail (HBHG). The Defendant is the publisher in the UK of a book written by Dan Brown, the Da Vinci Code (DVC), first published in 2003. The Claimants’ contention is that, in writing DVC, Mr Brown infringed their copyright by copying a substantial part of HBHG in the course of writing six chapters of DVC. The case came to trial over 11 days in February and March 2006 before Mr Justice Peter Smith. In his judgment, delivered on 7 April 2006, he dismissed the claim: [2006] EWHC (Ch) 719. He also refused permission to appeal, but on the Claimants’ application to the Court of Appeal, I granted permission to appeal on 13 June 2006.

2. It is not in dispute that HBHG is an original literary work in which copyright subsists, nor that the Claimants are two of the joint holders of the copyright. No point arises from the failure of the third, Mr Lincoln, to join them in bringing the proceedings. By virtue of section 16 of the Copyright, Designs and Patents Act 1988, it is an infringement of the Claimants’ copyright for another person, without their licence, to copy HBHG or any substantial part of it, directly or indirectly. The Claimants’ case is that Mr Brown derived the majority of six chapters of DVC from HBHG, that in so doing he copied part of HBHG, and that what he copied was a substantial part of HBHG.

3. The judge appears to have held that the six chapters were largely derived from HBHG, but he rejected the claim of copying. Not surprisingly after a lengthy trial, his judgment is long, running to some 70 pages. Remarkably, he delivered it less than three weeks after the end of the hearing. As was noted at the time, he was prompted by the extensive use in DVC of codes, and no doubt by his own interest in such things, to incorporate a coded message in his judgment, on which nothing turns. The judgment is not easy to read or to understand. It might have been preferable for him to have allowed himself more time for the preparation, checking and revision of the judgment.

4. The claim for breach of copyright is in some respects unusual, but it has to be tested by reference to the same principles as would be relevant in a more conventional case. If material is found in a later work which is also in an earlier copyright work, and it is shown that the author of the later work had access to the earlier work, an inference of copying is raised. Then it has to be considered whether there was in fact any copying, in relation to which the later author may say that he obtained the material from his own unaided efforts or from a different source. If it is found that any of the material common to both works was copied from the earlier work, then the question arises whether what was copied was a substantial part of the earlier work.

5. If the copyright work in question is a literary work, the allegation will normally be that part of the text of the earlier work was copied, exactly or with some modification, in the creation of the later work. In the present case that is not what is alleged as the basis for the claim in copyright infringement. What is said to have been copied is a theme of the copyright work. Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the cases in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.

6. The point was mentioned by Lord Hoffmann in the House of Lords in Designers’ Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 W.L.R. 2416, at paragraph 24, which concerned artistic copyright:

“there are numerous authorities which show that the “part” which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work.”

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