Allen v Bloomsbury Publishing Plc & Anor

Summary judgment is inappropriate where copyright infringement depends on disputed evidence about access, copying, similarity, originality and substantiality, particularly in a complex literary case. The court must not conduct a mini-trial on documents without disclosure or cross-examination. In non-verbatim copying cases, the relevant inquiry includes identifying common material, determining whether it was copied, distinguishing ideas from protected expression, and deciding whether a substantial part of the original work was taken. Copyright may protect the selection, arrangement and development of material, but not ideas, themes or information at a high level of generality. Substantiality is assessed by considering the nature and extent of copying, the quality and importance of the material, its originality, and the skill and labour appropriated.

The claimant, acting as trustee of Adrian Jacobs’s estate, alleged that Harry Potter and the Goblet of Fire infringed copyright in Willy the Wizard by copying plot elements, themes, incidents and aspects of its story architecture.

The defendants applied for summary judgment, arguing that the works were not materially similar, that any similarities were coincidental, and that there was no evidence of access or copying. They alternatively sought security for costs. The central issues were whether the claimant had a real prospect of establishing access and copying, and whether the alleged similarities could amount to a substantial part of the earlier literary work.

1. Summary judgment. The defendants’ applications for summary judgment were not determined in their favour. Under CPR Part 24, the applicant must show that the opposing party has no real prospect of success and that there is no other compelling reason for a trial. A real prospect is more than fanciful or merely arguable. The court must avoid conducting a mini-trial without disclosure and cross-examination.
2. Access and copying. The evidence concerning whether the literary agent had received copies of Willy the Wizard and whether a copy reached the alleged infringer involved substantial factual disputes. Those disputes could not safely be resolved on the summary judgment materials. The claimant therefore had a real prospect of establishing access and copying.
3. Substantial part. In a case involving alleged copying of plot architecture rather than words, the court must identify the common material, determine whether it was copied, decide whether it lies on the ideas or expression side of the line, and assess whether a substantial part of the original work was taken. Copyright may protect the selection, arrangement and development of literary material, but does not confer a monopoly over general ideas, themes, facts or information. The alleged similarities were abstract and simple, but the claimant had a real prospect of showing that their collective combination formed the core architecture of the work.
4. Security for costs. The question of security was adjourned. The court had a wide discretion and had to consider, among other matters, the apparent strength of the claim, the claimant’s conduct and ability to pay, and whether security would deny access to the court. The claimant had not yet had a fair opportunity to answer serious allegations made against him.