Happy Camper Productions Ltd v British Broadcasting Corporation (BBC)

On an application for an interim copyright injunction, broad similarities between works do not by themselves establish a serious issue as to copying a substantial part of an original literary work. The claimant must identify plausible copying of the protected expression, rather than infer copying from chronology and general similarities.

Where the copyright has a commercial value, difficulty in valuing infringement does not itself make damages inadequate. If damages are adequate, the application may be disposed of without deciding the serious-issue question. If that conclusion is wrong, the balance of convenience may favour refusal where an injunction would cause substantial disruption, reputational harm and uncompensated loss, particularly following delay and where the claimant cannot provide a meaningful cross-undertaking in damages.

The claimant sought an interim injunction preventing the BBC from broadcasting the comedy drama Pitching In. It alleged infringement of copyright in the script, and possibly the pilot film, for its comedy drama Down the Caravan.

The claimant relied on similarities in setting, premise and characters, and alleged that the script had been obtained by a BBC-connected producer and copied. The BBC disputed copying and relied on evidence that its programme had been developed independently before the alleged access to the claimant’s script.

The application concerned whether there was a serious issue to be tried, whether damages would be an adequate remedy, and, if necessary, where the balance of convenience lay.

1. Application refused. The claimant failed to show a serious issue as to copying of a substantial part of the script. The similarities identified were largely at a high level of generality and did not plausibly demonstrate copying of the claimant’s protected expression. The reasoning was informed by Baigent v The Random House Group Ltd [2007] EWCA Civ 247.
2. The court applied the familiar interim-injunction approach in American Cyanamid Co (No 1) v Ethicon Ltd [1975] AC 396. The serious-issue question sets a low threshold, but the court did not need finally to determine it because the application failed on the adequacy of damages.
3. Damages were an adequate remedy. The claimant’s alleged copyright had a commercial value capable of valuation. The fact that valuation might be difficult did not make damages inadequate. The possibility that the script might lead to later episodes did not alter that conclusion.
4. If damages had not been adequate, the balance of convenience would nevertheless have favoured the BBC. An injunction would have required a programme scheduled for broadcast the following evening to be withdrawn at short notice, causing financial and reputational harm and potentially affecting BBC Wales’s Welsh-content obligation. The claimant’s six-month delay in applying for relief was also significant.
5. The cross-undertaking in damages provided insufficient protection. The claimant was dormant, had no apparent means to meet an award, and no undertaking by its directors had been offered. Costs were assessed at £20,000, payable within 14 days subject to further representations.