Monday, 5 December 2011

Hodgson v Isaac: how to show copyright infringement

In Hodgson & Anor v Isaac & Anor [2010] EWPCC 37 (5 December 2011) HHJ Birss QC had to compare the claimant's book against the defendants' film script. If the book had been fictional, the matter would have been quite easy to decide: there would either have been copying, or there wouldn't, and we could then go on to consider exciting issues of whether taking facts only amounted to an infringement. But here the book was Mr Hodgson's biography, which Mr Isaac had not read: however, he had heard that history from Mr Hodgson's own mouth.

Interestingly, Mr Isaac offered to submit to arbitration by the Writers' Guild to determine the question of copyright infringement. An appropriate order was made by the court initially seised of the matter (Newcastle County Court) but the Guild said it was not equipped to carry out the task. (I wonder what the Society of Authors would say? I doubt they are any better equipped to carry it out - the expertise is there, as it probably is at the Guild, but not the time.)

So the judge compared them, and came to the conclusion that the screenplay reproduced a substantial part of the book. He considered plot, characters and incidents. Mr Isaac had had a copy of the book but claimed not to have read it. The judge took the view that there had been copying, and then that the defendant had taken a substantial part - a part in which the elements reproduced are the expression of the intellectual creation of their author, in line with the Court of Justice's judgment in Case C‑5/08, Infopaq.

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