Wade & Anor v British Sky Broadcasting Ltd

A detailed pitch for a television programme may possess the necessary quality of confidence even though it is less developed than a full treatment. However, individual ideas which are vague, unoriginal or generally known are not protected merely because they appear in a confidential document. Liability requires confidential information, circumstances importing an obligation of confidence, and unauthorised use or disclosure. In appropriate cases, substantial similarities and an opportunity to copy may support an inference of derivation, which the defendant may rebut by proving independent creation. The court must assess the evidence as a whole. Honest evidence may fail to rebut the inference, but a finding of dishonesty or conspiracy is not invariably required. On the facts, the defendant established independent derivation and the claim failed.

The claimants developed and pitched a music talent-show format called The Real Deal to the defendant. The pitch was made through a detailed presentation deck, which the court accepted had been imparted in circumstances of confidence and was confidential as a whole. The defendant later produced and broadcast Must Be The Music.

The claimants alleged that the defendant had taken elements of their format, including chart-eligible downloads, an emphasis on singer-songwriters, primetime presentation and branding features. The defendant denied misuse and relied on independent development by its staff and production partners. The central issues were whether the individual ideas or their combination were protectable confidential information, whether any ideas had been derived from the pitch, and whether the defendant had misused them.

1. Confidentiality. A duty of confidence arises where confidential information comes to a person in circumstances giving notice of, or importing, an obligation of confidence, so that it would be just to restrain disclosure or use. The obligation applies only while the information remains confidential and does not protect useless information or trivia: [1990] 1 AC 109. The three requirements identified in Coco v Clarke [1969] RPC 41 were applicable: the necessary quality of confidence, circumstances importing an obligation, and unauthorised use or disclosure.
2. A detailed pitch document containing concrete ideas and capable of providing a firm basis for developing a television programme may be protected, even though it is not a fully worked-out treatment. Conversely, ideas which are too vague or unoriginal lack the necessary quality of confidence. The court applied the approach in De Maudsley v Palumbo [1996] FSR 44 and Saltman Engineering v Campbell (1948) 65 RPC 205.
3. Inference of copying. Although the legal burden remains on the claimant, significant similarities coupled with an opportunity to copy may create an evidential inference of derivation. The defendant may rebut it by proving independent derivation. The court must assess the strength of the inference against the cogency of the evidence of independent creation. Similarities must be analysed carefully, without treating differences as automatically excluding copying, consistently with IPC v Highbury Media [2005] FSR 34.
4. The deck as a whole was confidential, but the alleged individual features, including chart-eligible downloading and the use of singer-songwriters as judges or contestants, were not individually protectable. The court did not need finally to decide whether the particular combination of features shared by the two programmes had the necessary quality of confidence.
5. On the evidence, the similarities and timing created an inference with some substance, but it was not overwhelming. The defendant’s evidence provided a clear and persuasive account of independent development. The programme was independently derived and the confidential information was not misused. The action was dismissed.