Case No. IP-2021-000111

35.36.Section 16(1) of the Copyright, Designs and Patents Act 1988 (“CDPA”) provides that the owner of the copyright in a work has the exclusive right to do certain acts restricted by the copyright which include, inter alia37.The first step, therefore, is to establish whether the Defendants have copied the copyright work. This requires a multifactorial assessment which Wilberforce J in Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587 described as “a judgment of fact upon a number of composite elements: the degree of familiarity (if proved at all or properly inferred) with the plaintiff’s work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendant’s work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant… and not least the quality of the defendant[‘s] own evidence on the presence or otherwise in his mind of the plaintiff’s work”.38.Whether what has been copied amounts to a substantial part of a copyright work is a matter of quality rather than quantity. A part is substantial if it contains elements of the expression of the intellectual creation of the author of the copyright work (Infopaq International A/S v Danske Dagblades Forening [2009] ECR-I 6569). 39.Ms Watkinson submits that copyright can subsist not only in the words of a literary work but also in the selection, arrangement and development of ideas, characters and narrative in such works, relying on Baigent v Random House Group Ltd [2007] EWCA Civ 247 (Mummery LJ at [141]); Kogan v Martin [2019] EWCA Civ 1645, (Floyd LJ at [34] (“”), [41] (“it is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the case of a literary or dramatic work…” and [42]); Shazam Productions Ltd v Only Fools The Dining Experience Ltd [2022] EWHC 1379 (IPEC) where Mr John Kimbell QC (sitting as a Deputy High Court Judge) held that the characteristics of a fictional character are protectable by copyright as a literary work at [113]; and Pasternak v Prescott40.These cases all seem to me to be examples of the application of the test from Infopaq (even in the case of Baigent, as although it pre-dates Infopaq such a qualitative test existed before Infopaq: see, for example, HHJ Birss QC as he then was in Hodgson v Isaac 41.Mr Hicks draws my attention to the warning given by Laddie J in IPC Media Limited v Highbury-Leisure Publishing Limited [2004] EWHC 2985 that focussing too much on similarities and ignoring the full context within which those similarities exist, can give rise to a misleading impression, as . 42.The Claimant submits that IPC Media pre-dates Infopaq, and the law has moved on since that decision was made in 2004. She submits for the Claimant that the correct approach in determining whether a defendant has copied a substantial amount of work is to focus on the elements which have been taken and determine whether those elements reproduce elements of the author’s intellectual creation, rather than the approach set out in IPC Media. I do not disagree with her, but I think that IPC Media remains a useful warning that where one has chipped away at something, one must examine what remains carefully to assess whether it does truly reproduce elements of the author’s intellectual creation, or merely gives the illusion of it.43.In relation to access, there was a dispute between the parties about the extent to which the Claimant was required to prove on the balance of probabilities that there was access to FFD, or merely required to prove the possibility of access to FFD. Mr Hicks relies on the decision of Zacaroli J in Sheeran v Chokri [2022] EWHC 827 (Ch) when this issue arose for his determination in the context of alleged infringement of a musical work. He said:[24] While the legal burden rests with the person alleging infringement, in the case of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. There was some debate as to whether what was required was a proof of access, or proof of the possibility of access.[25] The weight of authority supports the former: see, for example, Designers Guild (above), per Lord Millett at p.2425E; Baigent v Random House [2007] EWCA Civ 247 at [4], although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to Internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the Internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. …[26] Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.44.The Defendants rely on this passage to submit that the Claimant must provide evidence that the Defendants actually accessed the claimant’s book and copied it rather than just raise a possibility of access. The Claimant submits that Zacaroli J made clear at para 25 (quoted above) that nothing turned on the point. 45.In my judgment, as Zacaroli J states above, the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other circumstances in the case. That is the point made by Wilberforce J in Hunter Day, quoted above, I believe, when he referred to: “the degree of familiarity (if proved at all or properly inferred) with the plaintiff’s work”. That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.