Meakin v British Broadcasting Corporation & Ors

On summary judgment, a claim must have a realistic prospect of success, assessed without conducting a mini-trial but with appropriate analysis of the evidence. In copyright claims concerning television formats, general similarities at a high level of abstraction, especially where commonplace and unsupported by evidence of access, may be insufficient to establish derivation. Non-literal copying can infringe, but the claimant must show copying of a substantial part of the work’s expression, not merely its ideas, themes, information or commonplace format features. Pleadings alleging infringement or joint tortfeasance must identify facts and acts capable of supporting those claims.

The claimant alleged that three television-game-show proposals had been copied in a BBC programme, its website, and other games or proposed programmes. He also alleged breaches of confidence and sought orders for disclosure, amendment and striking out.

The defendants applied for summary judgment on the copyright claims, striking out of specified breach-of-confidence and other allegations, and related relief. The claimant sought disclosure, amendment and striking out of parts of the defences. The central issues were whether the copyright claims had a realistic prospect of establishing derivation and copying of a substantial part, and whether the remaining pleadings and disclosure applications were properly maintainable.

1. Summary judgment was granted to the defendants on the copyright claims. The court applied the principles under CPR rule 24.2: the claim had to have a realistic, rather than fanciful, prospect of success; the court should avoid a mini-trial; but it was not required to accept unsupported assertions without analysis.

2. The alleged similarities between the proposals and the broadcast programme were general similarities at a high level of abstraction. They concerned commonplace features of television game shows, including premium-rate telephone lines, prize funding and programme structures. Even considered cumulatively, they were insufficient to support an inference of copying. The lack of evidence that the relevant developers had access to the proposals reinforced that conclusion.

3. Although copyright infringement may result from non-literal copying, the claimant had no realistic prospect of proving that a substantial part of the expression of his works had been taken. The alleged similarities amounted to general and commonplace ideas rather than protected expression.

4. Summary judgment was also granted to Mr Scott. The pleadings contained no facts giving the alleged joint-tortfeasance claim a realistic prospect of success. The proposed case against Celador and Mr Smith was likewise incapable of supporting joint tortfeasance, and no specific infringing acts by those defendants had been pleaded.

5. The claims concerning unrelated games and an unbroadcast pilot, and allegations of criminal copyright infringement, conspiracy, dishonesty and moral-rights infringement, were struck out or dismissed as speculative, irrelevant or unsupported. Permission to amend was granted only to delete the artistic-copyright claim. The other proposed amendments, specific-disclosure application, third-party-disclosure application and application to strike out parts of the defences were refused or dismissed, principally because they were unsustainable, premature or unsupported.

6. The defendants were awarded the costs of the applications. The second and third defendants’ costs were summarily assessed at £65,000; an interim payment of £31,000 was ordered for the first and fourth defendants. Permission to appeal was refused.

First-instance decision. No prior appellate decision is stated in the judgment.