Ogunkoya v Harding

Copyright infringement requires objective similarity and a causal connection showing that the defendant copied the copyright work. Copyright protects original expression, including original selection, arrangement and compilation, but does not confer a monopoly over facts, information, ideas, themes or research effort. A breach of confidence claim requires confidential information, circumstances importing an obligation of confidence, and unauthorised use causing detriment. A copyright notice or limited sale of historical research does not, without more, impose a duty of confidence. The court must examine the particular circumstances and the alleged use.

The claimant alleged that the defendant had plagiarised parts of an unfinished historical manuscript about the Smith family in his published family history. She advanced claims based on copyright infringement and breach of confidence. The defendant accepted that he had seen his mother’s copy of the manuscript but denied copying it, relying on independent public sources and family knowledge. The court considered nine representative alleged similarities and the circumstances in which the manuscript had been supplied.

1. Copyright. The court accepted that copyright subsisted in the three chapters. Copying requires objective similarity and a causal connection. The relevant question for substantiality is whether the allegedly copied part contains elements expressing the author’s intellectual creation, applying the approach in Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 and SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482.
2. The similarities principally concerned incidents, facts and source materials. Those matters were not, without more, protected expression. The defendant produced credible independent sources for most examples. Similar language generally resulted from both authors using the same newspaper sources. The one closer linguistic similarity was insufficient to establish infringement. There was no evidence that the defendant had used material derived directly or indirectly from the claimant’s work.
3. Even if the defendant had made some use of the manuscript, that use would not have amounted to copying a substantial part or the claimant’s expression of intellectual creation. The copyright claim therefore failed.
4. Breach of confidence. The claimant had to establish confidential information, an obligation of confidence arising from the circumstances, and unauthorised use. Much of the material derived from public sources, and the claimant had not identified a particular original confidential part of the chapters. The sale of copies to family descendants and friends, accompanied by an extended copyright notice, did not indicate that the contents were supplied in confidence.
5. No express or equitable duty of confidence arose in favour of the claimant. The alleged oral restriction on removing the manuscript from the recipient’s home was not proved and, in any event, would have done no more than reiterate the copyright notice. Even assuming an obligation existed, use of the manuscript merely to identify public sources would not have constituted a breach.
6. The claim was dismissed on both copyright and confidence grounds.

The proceedings began in the Edmonton County Court and were transferred to the Intellectual Property Enterprise Court. An application for an interim injunction was refused by Carr J on 7 October 2016, although the trial was expedited. The present court determined the merits after trial.