Nova Productions Ltd v Mazooma Games Ltd & Ors

Under Art. 234(2) of the EC Treaty, a non-final appellate court has discretion whether to make a preliminary reference. A question may be treated as necessary where one possible answer would dispose of the case.

Even on that broad approach, an early reference may be refused where the appeal may fail on its facts or without a genuine question of EU law. The court may also consider whether a later reference would be more precisely formulated and whether an immediate reference would cause disproportionate delay or costs.

For computer-program copyright, ideas and principles are excluded from protection. Whether alleged copying is merely an idea, rather than protected expression, is generally a question of fact.

Nova Productions Ltd appealed from the rejection by Kitchin J of its copyright claims concerning the computer game Pocket Money. The alleged infringements were Mazooma’s Jackpot Pool and Bell-Fruit’s Trick Shot. The claims concerned artistic and literary works; the dramatic-work claim was not pursued on appeal.

Nova applied for a preliminary reference concerning the protection of computer programs and preparatory design material under the Software Directive 91/250. The High Court decision was reported at [2006] EWHC 24 and [2006] RPC 379. The central issue was whether a reference was necessary before the Court of Appeal heard the substantive appeals.

Application refused. The Court of Appeal declined to make a preliminary reference at that stage.

1. Under Art. 234(2) of the EC Treaty, this court, not being a final court of appeal, had a discretion whether to refer. The court adopted the broad test that a reference could be necessary if one possible answer would be dispositive of the case.
2. Even applying that test, an immediate reference was inappropriate. There was a real prospect that the appeals would fail on the facts. Kitchin J had found that the defendants’ games were not like Pocket Money, that no program code or architecture had been taken, and that only generalised ideas with different embodiments had been copied.
3. The substantive appeal might therefore be resolved without any real question of Community law. The Software Directive 91/250 excluded ideas and principles underlying computer-program elements from protection. Whether the defendants had taken only a mere idea, rather than protected expression, appeared to be a question of fact. These observations did not determine the infringement appeals.
4. If a question genuinely arose, the Court of Appeal would be better placed after hearing the appeal to formulate it precisely, explain why it arose and provide its own reasoned answer. An immediate reference could cause unnecessary delay, potentially extending resolution by two to four years, without any clear substantial saving in costs.

The court expressed no concluded view on whether preparatory design material should be taken into account as part of the protected computer program. The merits appeals remained pending.

• Court of Appeal (Civil Division): refused Nova’s application for a preliminary reference; the substantive appeals were not determined in this judgment.
• High Court of Justice, Chancery Division: Kitchin J rejected the copyright claims, with the decision reported at [2006] EWHC 24 and [2006] RPC 379, and granted permission to appeal.