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European IP Bulletin, Issue 31, May 2006 - Hot Topics

Hot Topics

1. Copyright Protection of Historical Works: The Da Vinci Code Case

In Baigent and Leigh v Random House Group Ltd, [2006] EWHC 719, the Claimants are the authors of Holy Blood and Holy Grail (HBHG). Their ultimate ‘hypothesis’ in HBHG was that references in early manuscripts concerning the Grail story referred not to a grail in the sense of a chalice, but rather to ‘Sang Real’, meaning holy blood, in reference to the bloodline of Christ, borne by Mary Magdalene and continued, in France, in the form of the Merovingian dynasty. The established Church attempted to suppress the bloodline history, but a secret sect, the Priory of Sion, secretly protected it. In reaching this conclusion, Baigent and Leigh started from six known ‘indisputable’ historical facts or supposed facts. However, their ultimate conclusion was the result of ‘historical conjecture’ based on those facts. This unorthodox technique allowed them to put forward various hypotheses about certain points which they identified as plausible, without ultimately committing themselves to whether they believed them to be correct. The original central theme to arise from their work identified by the judge in his findings of fact was the merging of Christ’s bloodline with the Merovingian bloodline as an idea.

The Defendant, Random House, published The Da Vinci Code, authored by Dan Brown. The Da Vinci Code is a murder-mystery concerning the death of Jacques Sauniere, the Grand Master of the Priory of Sion. In order for the heroes to solve the mystery, they must work out various puzzles which are based on the history of the Priory and the continuation of Christ’s bloodline. There was little doubt that Dan Brown had drawn on HBHG to some extent. There was a reference to it in The Da Vinci Code and one of the characters was named Sir Leigh Teabing, a combination of the name of the Claimant Leigh, and an anagram of the name of the Claimant Baigent.

Baigent and Leigh brought an action against Random House for infringement of their copyright in the literary work, arguing that Brown had copied the way in which they had made the sequence of connections of the facts of the merging of the bloodlines. In doing so, Brown had ‘shortened the way’ since he had relied on others’ research and had appropriated the Claimants’ literary labour. There had been little copying of the actual text of HBHG, and so the claim had to be couched in terms of a claim for non-literal copying of a substantial part of the Claimants’ literary work. However, this presented a difficulty because of the general principle that copyright protects expression and not ideas. HBHG was a book which took historical fact as its starting point, and historical facts are classed as unprotectable ideas. In order to succeed, Baigent and Leigh had to show that Brown had taken a substantial part of the manner in which they had expressed those ideas, as opposed to taking the ideas themselves.

The law

The parties agreed that there was no novel point of law to be resolved. Instead, it was a matter of applying the law to the facts. This was a case of non-textual infringement of a literary work and, as such, was relatively unusual. The first step was to identify the work relied on. There was no doubt that HBHG was an original literary work, but the extent of the originality was less clear. Following Hyperion v Sawkins [2005] EWCA 565, what was protected in the case of a work which drew on pre-existing sources was the effort put in by the authors in researching the sources and presenting their findings. The manner in which facts, themes and ideas are collated and presented does qualify for copyright protection. However, there could be no monopoly in the underlying ideas or historical information.

The next step was to determine whether a substantial part of the copyright work had been copied. First, one must identify the features which have allegedly been copied. Then, it must be shown that those copied features constitute a substantial part of the Claimant’s work (although it need not constitute a substantial part of the Defendant’s work). Differences between the two works are not relevant. While literal copying is not required in infringement cases, borrowing of abstract ideas will not infringe. A fair balance must be struck between protecting the rights of the author and allowing literary development; to achieve this balance, in the interests of fairness to others, the subject matter of the copyright monopoly must be identifiable with certainty. Such certainty is particularly necessary where the literary work in question deals with actual events. Even when a work based on historical facts does achieve copyright protection, later authors can draw on those facts, as long as they do not appropriate the earlier author’s labour.   

Applying facts to the law

Although Dan Brown did not directly use HBHG when preparing the synopsis of his novel, he did use his wife Blythe Brown’s research, and she had relied on HBHG. The precise stage at which his wife had used the book was unclear and could not be settled definitively without evidence from her. However, it was apparent that HBHG had been used in writing the ‘Leigh Teabing Lectures’. Blythe Brown had the book from at least 2000 onwards and her research using the book had been used by Dan Brown to complete the second part of The Da Vinci Code between March and August 2002.

Clearly then, Dan Brown had had access to HBHG, but had he used it in a way which infringed Baigent and Leigh’s copyright? It was conceded by Baigent and Leigh that the limited direct textual copying that had taken place did not infringe HBHG. Instead, the Claimants alleged that what had been taken was the central theme of HBHG, and that this constituted an infringement of the original literary work in HBHG. To succeed in this claim, the Claimants had to make out three points:

1. that there was a central theme in HBHG;
2. that this central theme (if it existed) was capable of protection as a literary work under the CDPA; and
3. that Dan Brown had copied the central theme in a way that was substantial.

The Claimants acknowledged that they had no copyright in the ideas and facts contained in HBHG, only in its architecture or structure or the way in which they had been presented. This meant that copying by Dan Brown of the central themes themselves was insufficient to establish infringement. Instead, the Claimants had to show that he had copied the structure of HBHG, which was the chronological presentation of the 15 themes that Baigent and Leigh had identified. This of course presupposed that the central themes could in fact be found in HBHG.

However, Peter Smith J. found that the central theme that the Claimants relied on was an artificial contrivance designed to create an illusion of a central theme for the purposes of making out infringement. There was no statement in HBHG that the central theme identified by the Claimants was the central theme of the book. Individually and as a whole, they consisted of a series of generalised ideas, assertions or facts.  Moreover, there were a lot more ideas in HBHG than were identified in the central theme described by the Claimants. To the extent that there was a central theme, it was that of the merger of the Merovingian bloodline with that of Mary Magdalene. However, that was an idea at too high a level of abstraction to be protected by copyright and lacked architecture or design.

Even if the central themes identified by Baigent and Leigh really were the central theme of their book, this central theme merely constituted a number of facts and ideas at a very general level that could not be protected unless they were presented in an original manner. Yet, the manner in which the 15 themes identified were arranged was ‘natural chronological order’. This was the logical way in which to arrange such facts and was too general and at too low a level of extraction to attain copyright protection. In any event, contrary to Baigent and Leigh’s claims, there was no such chronological order in HBHG.

To sum up, there was no chronological architectural structure in HBHG. Without this structure, there was no central theme in HBHG and so the question of whether the central theme could be classed as an original literary work, let alone whether Dan Brown had infringed it, never arose.

To make his decision ‘appeal proof’, Peter Smith J. considered further argument made by the Claimants. There was no doubt that Dan Brown had used HBHG during the writing of The Da Vinci Code, particularly when authoring the ‘Leigh Teabing Lectures’. He may not have known that he was using HBHG since he was relying on material provided by Blythe Brown, but this had no bearing on whether he infringed the copyright. As to how that research was used, although the majority of the 15 central themes said to be present in HBHG could also be found in The Da Vinci Code, four or five of them could not. This made the residual central themes which were replicated more general and therefore less central. It also reduced the chance of what Brown had taken being a substantial part of HBHG.

On the issue of copying, while Dan Brown had drawn mostly from other books in authoring the synopsis, in his later writing, particularly in the ‘Leigh Teabing Lectures’, he had drawn almost exclusively on HBHG. Even though there was no claim of textual infringement, this finding was supported by nine language similarities between the two works. Furthermore, various preparatory documents authored by Blythe Brown and produced in evidence contained matter drawn from HBHG.

Nevertheless, this evidence that the Browns had access to and had used HBHG did not help the Claimants’ case. Because there were no central themes, Dan Brown could not have copied those central themes. Once there was no copying of the central themes, there could be no substantial copying of the central themes, and hence no substantial copying of HBHG. Instead, Blythe Brown had merely used HBHG, together with other books, to provide general background material for the writing of The Da Vinci Code.

Where this leaves the law

Although both parties and the Judge agreed that the case contains no new point of law, the case remains legally interesting. There are few litigated cases concerning non-literal copying of literary works and thus each one gives us a further indication about how the law should be applied. Since the dividing line between protectable facts and unprotectable expression is so hazy, the facts of each case in this area, and how the law is applied to those facts, are particularly instructive.  In this case however, the dividing line was not seriously engaged because of the artificial nature of the structure that Baigent and Leigh claimed was central to HBHG.
Post-script: The Smithy Code

Given the fame of Dan Brown’s book, this case was always going to feature prominently in the newspapers. However, Peter Smith J. ensured that the case hit the headlines again three weeks after it was decided by including a secret code in his judgment. The judge italicised a number of seemingly random letters. Careful reading reveals that the first ten letters spell out the term SMITHY CODE, alerting readers to the presence of a further code. A longer sequence of italicised letters follows which, when a polyalphabetic cipher using a keyword based on the Fibonacci Sequence is applied, reveals the phrase JACKIE FISHER WHO ARE YOU DREADNOUGHT.  John ‘Jackie’ Fisher was a British admiral from the turn of the century who during World War I championed the creation of the first modern battleship, the Dreadnought. Peter Smith J, who includes his admiration of Jackie Fisher in his Who’s Who entry, subsequently explained that the beginning of the trial coincided almost exactly with the centenary of the launch of the HMS Dreadnought.

2. EU Proposes Criminal Sanctions for Counterfeiters

On 26 April 2006, the European Commission proposed a new law under which criminal sanctions such as a minimum jail sentence of four years and minimum fines of 300 000 Euros  would be applied against those involved in counterfeiting and piracy within the European Union. Unveiling the plans, the EU Justice Commissioner Franco Frattini said these measures were needed to curb the increased sale of counterfeit goods in the EU and to deal with the increased involvement of organised crime groups in the distribution of the fake goods.

The move comes in the wake of last year’s ruling by the European Court of Justice (“ECJ”) that the Commission had the right to draft criminal measures in certain parts of the EU internal market to enforce EU policies. This is likely to face strong opposition from the Member States who view the right to impose criminal sanctions as the exclusive right of national governments. This is evident from the EC Enforcement Directive 2004/48/EC which, even after industry’s lobbying for criminal measures, left the prescription of criminal sanctions to the respective member states.

According to EC Commissioner Frattini, there are four key considerations that prompted the new measures. First, there is the need to protect industry and to prevent the violation of intellectual property rights within the EU. Secondly, there is the need to protect the consumers’ health and safety. Thirdly, there is the need to harmonise the criminal penalties within the EU. Finally, states should adopt measures to punish and deter counterfeiting activities. Official statistics indicate a significant increase in counterfeit goods, and a struggle by national authorities to curb the illegal imports of fake goods (which sometimes are difficult to distinguish them from the genuine goods). Over 100 million counterfeit and pirated goods are seized annually by the authorities across the 25 member states. Pirated goods encompass a whole range of products including CDs, DVDs, drugs, drinks and recently a Ferrari car. Worryingly, one of the highest increases was registered in products that were unsafe and harmful to health.

Although several European governments already have criminal sanctions within their national regimes, the new proposal would create minimum sentences and fines that would apply throughout the EU.

3. Met Police Set Up a Special Unit to Target Film Piracy

In February 2006 the Metropolitan Police launched a special unit dedicated to fighting increasingly rampant film piracy in partnership with the Federation Against Copyright Theft (“FACT”), the UK film and broadcast industry's anti-piracy organisation. Believed to be the first of its kind in the world, the new Metropolitan Police Film Piracy Unit will target organised criminal networks involved in the manufacture and distribution of counterfeit film products.

The Film Piracy Unit has been set up to target a trade that involves an estimated 77 million pirate DVDs being produced in Britain every year, making it the world’s second-biggest black-market film centre after the United States. The loss of DVD sales, box-office takings and rentals now costs the audio-visual industry £818 million. The criminal gain from DVD piracy is estimated at £278 million. The UK Film Council warned that, if unchecked, the illegal movie trade could be worth as much as £1 billion by 2007. In the UK, the majority of music, film and software piracy is conducted by criminal gangs who organise the production of counterfeits across networks of small DIY factories, and control the distribution of them at local markets, car boot sales and industrial units and via street vendors. Eddy Leviten, of the FACT, the film industry’s anti-piracy body, said that illegal Chinese immigrants had exacerbated the problem.

Comprising one detective sergeant and four detective constables, the Film Piracy Unit is a dedicated unit within the Met's Economic and Specialist Crime Command and will investigate those individuals and organisations accruing sizeable criminal profits from illegal activity in the area of film piracy. The unit will also provide advice and support to other police forces in the UK on the investigation of film piracy. It will initially operate for a one-year trial period.

The Proceeds of Crime Act 2002 (“POCA”) also acts as a powerful tool in this respect. It sets out tough rules that allow Courts to confiscate assets from criminals, unless they can prove that the assets were not derived from crime. The POCA  provides officers with the necessary powers to take the profit out of this type of crime, and in turn preventing both the funding of further criminal activity and reducing the presence of criminal role models in local communities.

 

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