Intellectual Property


Books - copying - copyright - literary works - substantial part - non-textual infringement - central themes

(1) Michael Baigent (2) Richard Leigh v Random House Group Ltd: CA (Civ Div) (Lords Justice Mummery, Rix, Lloyd): 28 March 2007

The appellant authors (B) appealed against a decision ([2006] EWHC (Ch) 719) that the novel, The Da Vinci Code (DVC), published by the respondent company (R), did not infringe their copyright in their book, The Holy Blood and the Holy Grail (HBHG) - an original literary work in which copyright subsisted.



HBHG was presented as a non-fiction book, propounding the theory that the bloodline of Jesus had not only survived but had merged with the Merovingian bloodline around the fifth century. The DVC was a thriller that also concerned Jesus' bloodline. Its author (D) and D's wife had spent time conducting research before D had started writing the DVC. D acknowledged that he had used the HBHG at some stage. B maintained that D had used the central theme of the HBHG as the basis for the DVC and had copied a substantial part of the HBHG.



The judge held that, although there were several central theme elements in the HBHG, the latter had no genuine central theme, and, to the extent that a central theme was there and was copied, it was no more than 'an expression of a number of facts and ideas at a very general level' and so was not capable of copyright protection; alternatively, it did not amount to a substantial part of the HBHG. B submitted that there was a central theme in the HBHG and that the copyright in the HBHG had been infringed by substantially copying the central theme.



Held, as the judge had found, D had had access to the HBHG at the time when he had written parts of the DVC, and had used the HBHG at that stage, basing relevant parts of the DVC on material within it. There was relevant material in HBHG that was also to be found in DVC, namely several central theme elements. Nevertheless, the judge had been correct to conclude that what D had taken from HBHG amounted to generalised propositions at too high a level of abstraction to qualify for copyright protection, because it was not the product of the application of skill and labour by the authors of HBHG in the creation of their literary work. It lay on the wrong side of the line between ideas and their expression.



In any event, although the relevant central theme elements were to be found in both books, B's claim depended on showing that the central theme propounded was a central theme of HBHG, sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction, Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 WLR 2416 considered. The judge had been entitled to hold that the central theme was not a theme of HBHG at all, but was no more than a selection of features of HBHG that had been collated for forensic purposes rather than having emerged from a fair reading of the book as a whole. Furthermore, the judge had been entitled to reject B's contention that the central theme was a substantial part of the HBHG, and it was not necessary for him to provide any further explanation for his conclusion that, whatever elements, if any, were copied from HBHG, they did not amount to a substantial part of it.



Appeal dismissed.



Jonathan Rayner James QC, Andrew Norris (instructed by Orchard Brayton Graham) for the appellants; John Baldwin QC, James Abrahams (instructed by Arnold & Porter) for the respondent.





Conflict Of Laws



Agreements - allocation of jurisdiction - exclusive jurisdiction - issue of proceedings - service - translations

Marco Benatti v (1) WPP Holdings Italy SRL (2) WPP 2005 Ltd (3) Berkeley Square Holding BV: CA (Civ Div) (Sir Anthony Clarke (Master of the Rolls), Lords Justice Buxton, Toulson): 28 March 2007
The appellant (B) appealed against the decision of the judge ([2006] EWHC 1641) rejecting B's challenge to the jurisdiction of the English court in relation to proceedings issued against him by the respondent group of companies.



B, an Italian businessman domiciled in Italy, had entered into a consultancy agreement with the first respondent company (W), by which he was to assist W and any other group company. The agreement included a clause providing that it was governed by English law and that any disputes arising from it were to be exclusively submitted to the English courts. W subsequently terminated the agreement on the basis that B had failed to disclose his interest in two other Italian companies.



Thereafter, W and other companies in the group, the second and third respondents (X and Z), issued proceedings against B in England, asserting that B owed contractual and fiduciary duties to W as the contracting counter-party, and to X and Z by virtue of the terms of the contract and section one of the Contracts (Rights of Third Parties) Act 1999. Meanwhile, B issued proceedings against W and the company group in Italy, contending that he had been their employee, and that his contract of employment had been unlawfully terminated.



B challenged the jurisdiction of the English court. It fell to be determined whether the court had a basis to accept jurisdiction over the claims and, if so, whether it was the first court seised. The judge held that B's contract was not an employment contract, and that, by reason of the exclusive jurisdiction clause and article 23 of Regulation 44/2001, the court had exclusive jurisdiction over all the respondents' claims. In relation to X and Z, he held that there was a good arguable case that the Act entitled them to enforce the exclusive jurisdiction clause in respect of their claims, and that in those circumstances article 23 gave exclusive jurisdiction to the court. Furthermore, the judge found that although B had apparently initiated proceedings against X in Italy before the English proceedings had been commenced, because B had served the writ on X without a certified translation of it, X had been entitled, as it did, not to accept service. The judge accordingly concluded that the lodgement of the writ by B in Italy had not resulted in valid service of the proceedings and that, pursuant to article 30 of the regulation, the English court was therefore first seised of the issues between X and B.



B contended that the judge had been wrong on the issue of whether his contract was one of employment, on the entitlement of X and Z to rely on the Act and article 23, and on the 'first seised' issue in relation to X. The respondents submitted, among other things, that if the court did not have jurisdiction over the claims of X and Z under article 23, it had jurisdiction under article 5.1 of the regulation.



Held, the judge had not erred in his approach to the question of what type of contract B had had. In determining whether article 5.1 applied, it had to be considered whether the respondents' claims were claims 'in matters relating to a contract', and if so what was the place of performance of the relevant obligation. In the circumstances, their claims had indeed related to contractual benefit, and there was plainly a good arguable case that London was the place of performance of the obligation in question, so the English court therefore had jurisdiction in respect of the relevant contractual claims under article 5.1 and the fiduciary claims under article 5.3. Since article 23, if applicable, would produce the same result in this case as article 5, it was not necessary to determine whether the respondents were entitled to rely on it.



All that article 30(2) required of a claimant was that, after lodging the document with the authority responsible for service, he must not have failed to take the steps he was required to take to have the document lodged with the court. The document referred to in article 30(2) obviously had to be a document that was capable of being served and lodged with the court, so as to institute the proceedings against the relevant party. In this case, X had not argued that the Italian writ had failed to satisfy that requirement, or that B had failed to comply with the proviso to article 30(2). The contents of the Italian writ had made it perfectly plain that it was aimed at X, and there had been no contemporaneous suggestion that the service had been ineffective for want of a translation. That point had not been raised until some months later. The Italian court had, therefore, been first seised of the cause of action between X and B.



In conclusion, B's appeal in relation to X was allowed, and the Italian court had jurisdiction in respect of that claim, but B's appeal in relation to W and Z was dismissed: those claims were to be heard in the English court.



Appeal allowed in part.



Barbara Dohmann QC, Dominic Chambers (instructed by Reed Smith Richards Butler) for the appellant; Joe Smouha QC, Nathan Pillow (instructed by Freshfields Bruckhaus Deringer) for the respondents.





Planning



Listed building consent - planning authorities' powers and duties - planning policy guidance - application of PPG15 - lawfulness of grant of planning permission

R (on the application of Save Britain's Heritage) v (1) Westminster City Council (2) Secretary of State for Communities & Government: QBD (Admin) (Mr Justice Collins): 27 March 2007
The claimant (S) applied for judicial review of a decision of the first defendant planning authority to grant listed building consent and planning permission for the Middlesex Guildhall to be converted into the UK's Supreme Court building.



The Constitutional Reform Act 2005 had required that the House of Lords would be replaced as the highest court in the land by a new Supreme Court, which was to be housed in an appropriate building in central London. Steps were taken to choose a venue, and the Lord Chancellor and the second defendant secretary of state ultimately determined that the Middlesex Guildhall was the most suitable location. While the building's exterior would be unaffected by its change of use into the court, a number of changes to the building's interior would be necessary. As the Middlesex Guildhall, which had served as a Crown Court until 2007, was a Grade II listed building, any alterations to it required consent, pursuant to section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990.



Government policy PPG15 provided for a general presumption in favour of the preservation of listed buildings, and stated criteria for consideration when determining whether listed building consent might be justified, which included the importance of the building's architecture and historical interest and rarity; the particular physical features of the building; and the extent to which proposed work would benefit the community. The local authority's planning officer considered that the degree of change required to accommodate the course proposed and the impact on an outstanding building was balanced by the importance of accommodating the court in that building and in that location. That decision was confirmed by the authority's planning committee, which granted the building consent and planning permission, having first found that the Middlesex Guildhall was indeed the right site for the proposed court.



S contended that the authority's decision was flawed in that it had failed to pay proper regard to PPG15, and that even if it had applied the guidance within that policy, the form and substance of PPG15 should have been properly dealt with. S further submitted that the authority had approached its decision in the wrong way in making an initial finding that the Guildhall was the appropriate venue for the court, and that it first ought to have considered whether the proposed works were so damaging that planning permission should not be granted.



Held, in reaching a decision, what was important was whether a planning committee had in fact applied the correct approach and guidance, and whether or not a specific document or report had been brought to its attention and specified in its conclusion. In this case, the authority's planning committee had been aware of and had correctly applied the guidance in PPG15. The committee had also adopted the right approach in deciding first whether the Guildhall was the right site, as there would have been a major and damaging impact on a listed building, so unless that was clearly the right place for the court site, the application for planning permission would have been bound to fail in any event.



On the material before it, the authority had been entitled to conclude that the Middlesex Guildhall was the right location for the court, and that it was in the national interest and therefore desirable and necessary under PPG15 for the proposals to go ahead.



Application refused.



Joshua Harper QC (instructed by David Cooper & Co) for the claimant; Timothy Corner QC, Paul Brown (instructed by the Local authority solicitor) for the first defendant; Keith Lindblom QC, Hereward Philpot (instructed by Michelmores) for the second defendant.





Criminal



Consent - jury directions - rape - voluntary intoxication

R v Benjamin Bree: CA (Crim Div) (Sir Igor Judge (President, Queen's Bench Division), Lady Justice Hallett, Mr Justice Gloster): 26 March 2007
The appellant (B) appealed against his conviction for rape. B and the complainant (M) had spent an evening together, and had voluntarily consumed a considerable amount of alcohol before returning to M's flat and having sexual intercourse.



The Crown initially alleged that M had lacked the capacity to consent to the intercourse because she had been unconscious throughout most of the sexual activity. Following the evidence at trial, the Crown altered its stance to maintain that, although her ability to resist B's sexual advances had been hampered by the effects of alcohol, she still had capacity to consent and that she had made clear, so far as she could, that she did not wish to have sexual intercourse. M accepted that her recollection of events was very patchy and that she did not say 'no' to intercourse; however, she maintained that she had not consented. B maintained that M had been conscious throughout the incident and that he had reasonably believed that she was consenting.



Held, the proper construction of section 74 of the Sexual Offences Act 2003, which defined consent, was that if, through drink, or for any other reason, the complainant had temporarily lost her capacity to choose whether to have sexual intercourse on the relevant occasion, she was not consenting, and subject to questions about the defendant's state of mind, if intercourse took place, that would be rape. However, where the complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape.



As a matter of practical reality, capacity to consent could evaporate well before a complainant became unconscious. However, whether that was so depended on the actual state of mind of the individuals involved on the particular occasion. It would be unrealistic to create a grid system that would enable the answer to those questions to be related to some prescribed level of alcohol consumption, as everyone's capacity to cope with alcohol was different and even varied from day to day. The Act provided a clear definition of 'consent' for the purposes of the law of rape, and by defining it with reference to 'capacity to make that choice' sufficiently addressed the issue of consent in the context of voluntary consumption of alcohol by the complainant.



In a trial in which issues of consent and voluntary intoxication were fundamental to the outcome, the jury had been given no or no sufficient directions to enable its verdict to be regarded as safe. The jury should have been given some assistance with the meaning of 'capacity' in circumstances where M had been affected by her own voluntarily induced intoxication, and also whether, and to what extent, they could take that into account in deciding whether she had consented. Moreover, the judge had not addressed the significantly changed way in which the Crown put its case. It was possible that the jury had proceeded on the basis that M had been unconscious, contrary to the Crown's case in its developed form. In a situation like that, the issue of consent and capacity should have been directly addressed, R v Olugboga (1981) 73 CAR 344 applied.



The only specific feature of M's alcohol consumption identified by the judge was its possible relevance to her reliability as a witness. Although B conceded that M had been drunk, it was a fundamental part of his defence that she had been conscious throughout and had in fact consented to sexual intercourse. That critical aspect of the case had not been addressed in the summing-up. The questions of whether M might have behaved differently drunk than she would have done sober, and whether she might have behaved as B contended, and the way in which the jury should consider those important issues, had not been mentioned at all.



Appeal allowed.



Stewart Patterson for the appellant; Nicholas Tucker for the Crown.





Road Traffic



Drivers - enforcement - fixed penalty notices - parking

R (on the application of Transport for London) v Parking Adjudicator: QBD (Admin) (Mr Justice Calvert-Smith): 26 March 2007
The claimant charging authority (T) applied for judicial review of a decision by the defendant parking adjudicator that a penalty charge notice (PCN) or parking ticket issued to a motorist (M) was invalid.



M had stopped on double red lines and left his vehicle. A parking attendant saw the car and began to write down some details prior to writing out a PCN and handing it to the driver. As the parking attendant was doing that, M returned to the car, got in and drove off. T sent a PCN by post to the registered keeper of the vehicle, pursuant to section 5(1) of the London Local Authorities Act 2000 on the ground that the parking attendant had attempted to issue a PCN in accordance with the Road Traffic Act 1991 but was prevented by the motorist from doing so.



M appealed against that PCN to the parking adjudicator on the grounds that he had not prevented the parking attendant from serving a PCN. T argued that the words 'prevents from' in section 5(1) applied to a motorist like M who drove away so as to prevent a PCN being issued to him. The adjudicator held that he was not satisfied that the parking attendant had gone far enough in the issuing of a PCN that it could be said that M had prevented him from issuing a PCN. A review adjudicator upheld that decision. On the instant hearing, an issue arose as to the meaning of 'attempts to issue' and 'prevented from doing so' in section 5(1).



Held, the issue of a PCN meant the act of fixing a PCN to a vehicle or giving a PCN to the person who was in charge of a vehicle. A parking attendant started to issue a PCN either when he inputted details into a hand-held computer device that issued a PCN or when he completed a written PCN and walked towards the vehicle in question with that PCN. The mere jotting down of some details of a motorist's vehicle could not amount to an 'attempt to issue'. Such an act was merely a preparatory act, albeit that it was accompanied by an intention to issue.



For several years, the majority of parking adjudicators had acted on the basis that driving away did not amount to a prevention of a parking attendant issuing a PCN. Having regard to that practice, it could not be said that a driver who drove away before a PCN was placed on his vehicle or handed to him, and who did not use violence towards a parking attendant, could be said to have prevented a parking attendant from issuing a PCN.



Application refused.



James Pereira (instructed by the in-house solicitor) for the claimant; Ian Rogers (instructed by the in-house solicitor) for the defendant.