Baigent & Anor v The Random House Group Ltd

Copyright in a literary work protects its original expression, including the selection, arrangement and development of material. It does not confer a monopoly over information, facts, ideas, theories, arguments, themes or general hypotheses.

Infringement requires copying of the whole work or a substantial part of it. The copied material must be evaluated in relation to the original work as a whole; it need not constitute a separately copyrightable work. Where reliance is placed on an abstraction or theme, it must be objectively and fairly derived from the original work, rather than constructed by working backwards from the alleged infringement.

Similarity combined with access is prima facie evidence of copying. Liability is objective and does not depend on the copier’s intention. An appellate court should respect a trial judge’s assessment of substantiality unless affected by legal error or plainly unsustainable.

The claimant authors owned the copyright in The Holy Blood and the Holy Grail. They alleged that six chapters of The Da Vinci Code, published in the United Kingdom by the defendant, copied a substantial part of their work. Their case relied principally on 15 propositions said collectively to constitute the earlier book’s “Central Theme”, together with limited similarities of language and research materials demonstrating use of the book.

Peter Smith J dismissed the claim in [2006] EWHC 719 (Ch). Although his judgment contained findings that material from the earlier work had been used, he concluded that the pleaded theme was not genuinely a central theme of the work and that the material taken was too general and abstract to constitute a substantial part.

The claimants appealed, principally contending that the judge had applied the wrong legal test by asking whether the copied material was itself capable of copyright protection as a literary work.

1. The appeal was dismissed unanimously. Lloyd LJ delivered the leading judgment. Rix and Mummery LJJ agreed that the trial judge was entitled to find that the claimants had failed to establish copying of a substantial part of their literary work.

2. Properly understood, the judge had found a causal connection between the works. Eleven of the 15 pleaded elements had been taken from the earlier book, and that book had been used as a source for the relevant lectures in the later novel. That finding did not establish infringement because the material taken consisted of generalised propositions at too high a level of abstraction. It lay on the ideas side of the boundary between ideas and their expression.

3. A literary work may be infringed without replication of its precise language. Copyright may protect an original collection, selection, arrangement or development of material. It does not protect information, facts, ideas, theories, arguments, themes or general hypotheses merely because their discovery or formulation required substantial skill and labour.

4. The claimants’ pleaded “Central Theme” was not objectively and fairly derived from the earlier book as a whole. It omitted significant parts of that work and was assembled by working backwards from material found in the later novel. A claimant relying on an abstraction from a literary work must first justify that abstraction by reference to the whole work and then show that it, or a substantial part of it, was copied.

5. Mummery LJ emphasised that the copyright work was the book as a whole. It would be legally wrong to isolate the copied parts and ask whether they themselves constituted a copyright work. The correct question under section 16 of the Copyright, Designs and Patents Act 1988 was whether those parts, evaluated in relation to the whole original work, amounted to a substantial part. Any imprecision in the trial judge’s language did not affect his ultimate application of that test.

6. Substantiality is an evaluative question of fact and law, informed by the nature, importance and amount of the material taken. Following Designers’ Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58, an appellate court should not substitute its own assessment where the trial judge applied the correct principles and reached a sustainable conclusion.

7. Liability for copyright infringement is objective. Intention or knowledge is unnecessary, although knowledge may affect remedies under section 97 of the Copyright, Designs and Patents Act 1988. Lloyd LJ held that animus furandi is a red herring in modern English copyright law and should not be invoked in future.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 247, the court unanimously dismissed the claimants’ appeal and upheld the conclusion that no substantial part of the copyright work had been copied.
2. High Court, Chancery Division: Peter Smith J dismissed the copyright-infringement claim in [2006] EWHC 719 (Ch) and refused permission to appeal.