Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE KITCHIN
Between :
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PAUL GREGORY ALLEN (ACTING AS TRUSTEE OF ADRIAN JACOBS (DECEASED)) |
Claimant |
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- and - |
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(1) BLOOMSBURY PUBLISHING PLC, (2) JOANNE KATHLEEN MURRAY (PROFESSIONALLY KNOWN AS JK ROWLING)` |
Defendants |
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Robert Howe QC and Mark Engelman (instructed by DMH Stallard LLP) for the Claimant
Andrew Sutcliffe QC and William Edwards (instructed by Reynolds Porter Chamberlain) for the 1st Defendant
John Baldwin QC and Adrian Speck (instructed by Schillings) for the 2nd Defendant
Hearing dates: 28th - 30th July 2010
Judgment
Mr Justice Kitchin :
Introduction
This is an action for infringement of copyright in a book called Willy the Wizard (“WTW”) which was written in 1987 by the late Mr Adrian Jacobs (“Mr Jacobs”). The claim is brought by the trustee of Mr Jacobs’ estate, Mr Paul Allen. He alleges that Harry Potter and the Goblet of Fire (“Goblet”), the fourth book in the well known Harry Potter series of books written by the second defendant, Joanne Murray, popularly known as JK Rowling (“Ms Rowling”), reproduces a substantial part of WTW and that this is a result of copying. Goblet has been published in the UK by the first defendant, Bloomsbury Publishing Plc (“Bloomsbury”).
I now have before me applications by the defendants for summary judgment on the basis that Mr Allen has no real prospect of succeeding in the claim and there is no other compelling reason why the claim should be disposed of at a trial. They say that WTW and Goblet are not similar save at the most generalised level and that such similarities as there are between the two books have arisen by chance. Moreover, Ms Rowling had never heard of WTW or Mr Jacobs prior to the publication of Goblet and there is nothing to support a case of access to WTW or copying. In the alternative, the defendants invite me to make a conditional order requiring Mr Allen to provide security for their costs.
Mr Allen says that the application should be dismissed. He contends there is substantial evidence to indicate that Ms Rowling’s claims that she did not have access to WTW before writing Goblet are not true. Further, he continues, the allegations of infringement have generated lengthy and detailed schedules in which numerous aspects of each work are disputed. Moreover, there is further highly relevant disclosure which is likely to shed light on these matters. In summary, the claim is far from fanciful and raises many disputes of fact and complex issues of law which are self evidently wholly unsuitable for summary determination.
Background
WTW was published in the UK in 1987 by Bachman & Turner. In July 1989 Mr Jacobs was declared bankrupt and he died in February 1997. On 4 October 2004, the Official Receiver in Mr Jacobs’ bankruptcy assigned the copyright in WTW together with all accrued causes of action to Mr Jonathan Jacobs, his son, beneficiary and administrator of his estate in probate. On 11 June 2008, Mr Jonathan Jacobs appointed Mr Allen as trustee of the estate and assigned the copyright and causes of action to him.
It is Mr Allen’s case that in 1987, Mr Christopher Little, who became Ms Rowling’s literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or, indeed, any of the other Harry Potter books.
As I shall elaborate, there is a substantial dispute as to the events that occurred in 1987 and the nature of the relationship between Mr Little and Mr Jacobs. Nevertheless, the defendants contend that Mr Allen’s case on copying is hopeless essentially because Ms Rowling did not make contact with Mr Little until 1995 by which time the first book in the series, Harry Potter and the Philosopher’s Stone, had already been written and the others planned. Indeed, Ms Rowling says that the first she ever heard of WTW was in 2004 when she was informed that a complaint of copyright infringement had been made by the estate of Mr Jacobs and she was not provided with a copy of it until May 2010.
More specifically, Ms Rowling explains that the idea for the Harry Potter series first came to her in 1990 while she was on a train journey from Manchester to London. That evening she began writing Harry Potter and the Philosopher’s Stone. The manuscript was completed in 1995 and Ms Rowling set about sending the first few chapters to literary agents, one of whom, Mr Little, asked for the full manuscript. On the strength of this manuscript, Ms Rowling was taken on by Mr Little. He made only minor suggestions for improvement but never any changes to the themes or story line. He did not, Ms Rowling continues, encourage her to use any ideas or themes from other books, nor did he provide her with any books in order for her to use their ideas. Following an offer from Bloomsbury, Harry Potter and the Philosopher’s Stone was published in 1997. The version of the book supplied to Mr Little’s agency in 1995 was largely the same as that which was published. Further, by this time Ms Rowling had also mapped out, and then described in detail to Mr Little, the themes and storylines for the remaining six books in the series. Accordingly, although Goblet was, says Ms Rowling, mostly written during 1999-2000, the ideas for the plot had been developed over a number of years dating back to 1990, long before she had ever met Mr Little, let alone heard of WTW.
This claim has a long history. In brief, in March 2004, solicitors then acting for Mr Jonathan Jacobs, wrote to Ms Rowling asserting that the five Harry Potter books then published amounted to a persistent and wilful infringement of copyright in WTW. The allegation was refuted and following a good deal of correspondence over the course of the next three months, the matter was not pursued.
On 2 July 2008, new solicitors by then instructed on behalf of Mr Allen and the estate of Mr Jacobs wrote renewing the allegation of infringement of copyright not only in WTW but also raising an allegation of infringement of copyright in another apparently unpublished work by Adrian Jacobs called Holiday Antics (“HA”). It was again asserted that the first five Harry Potter books were infringements. Nevertheless, the letter continued, Mr Allen intended to limit his claim to Goblet whilst reserving his rights in relation to the others. Enclosed with the letter were draft particulars of claim which asserted that Ms Rowling had deliberately concealed her infringing activities. Once again the allegation was refuted in correspondence and the matter again fell quiet, this time for a period of about seven months.
Then, by letter of 11 June 2009, Mr Allen’s solicitors wrote informing Bloomsbury’s solicitors of the imminent commencement of proceedings against Bloomsbury in respect of infringement of copyright in WTW by the publication of Goblet. The claim in respect of HA had apparently fallen away. In February 2010, nearly six years after the original complaint, Ms Rowling was joined in the proceedings as second defendant.
Summary judgment – general principles
On a summary judgment application the court must consider whether the case has a real as opposed to a fanciful prospect of success. The approach to be adopted was explained by Carnwath LJ in Mentmore International Limited v Abbey Healthcare (Festival) Limited [2010] EWCA Civ 761 at [20] to [23]:
“20. It is important to keep in mind the principles to be applied in deciding whether a case is suitable for disposal on a summary basis. The most authoritative up-to-date statement is that of Lord Hope in Three Rivers DC v Bank of England (No 3) [2001] 2 All ER 513:
“In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents, without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, [2001] 1 All ER 91, at p. 95 that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
21. Another frequently cited passage on the same theme is the judgment of Colman J in De Molestina v Ponton [2002] 1 Lloyd's Rep 271, 280 para 3.5, speaking of the difficulty of basing summary judgment on inferences of fact in a complex case:
“…, as Three Rivers District Council shows, where the application in such complex cases relies on inferences of fact, the overriding objective may well require the claim to go to trial in the interest of a fair trial. That is because the relevant inference could not be safely drawn without further discovery and oral evidence at the trial. It is thus necessary, where such inferences are relevant, to guard against the temptation of drawing them as a matter of probability, because the achievement of the over-riding object requires a much higher degree of certitude. Where in a complex case, as may often be the situation, the frontier between what is merely improbable and what is clearly fanciful is blurred, the case or issue should be left to trial.”
22. To these familiar citations, Mr Reza adds the words of Potter LJ in ED&F Man Liquid Products v Patel [2003] EWCA Civ 472 para 10:
“However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable…”
23. If Mr Reza was hoping to find in those words some qualification of Lord Hope's approach, he will be disappointed. The Three Rivers case was specifically cited by Potter LJ. He was in my view intending no more than a summary of the same principles. Lord Hope had spoken of a statement contradicted by “all the documents or other material on which it is based” (emphasis added). It was only in such a clear case that he was envisaging the possibility of rejecting factual assertions in the witness statements. It is in my view important not to equate what may be very powerful cross-examination ammunition, with the kind of “knock-out blow” which Lord Hope seems to have had in mind.”
The procedure is therefore designed for cases which are not suitable for trial. Complex cases are unlikely to be capable of being resolved without conducting a mini-trial on the documents, without disclosure and without oral evidence and, if so, they are not suitable for summary determination. Mummery LJ provided further guidance to like effect in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical 100 Ltd [2006] EWCA Civ 661, at [4]-[5], [9]-[12] and [17]-[18], warning against the risk of injustice if a complex case is decided without the benefit of disclosure and the procedures available at trial:
“4. Summary judgment procedures, which are designed for the swift disposal of straight forward cases without trial, are only available where the applicant demonstrates that the defence (or the claim, as the case may be) has no “real” prospect of success and if there is no other compelling reason why the case or issue should be disposed of at a trial: CPR Part 24.2 . Thus, without the assistance of pre-trial procedures, such as disclosure of documents, and without the benefit of trial procedures, such as cross examination, the court's function is to decide whether the defendant's prospect of successfully establishing the facts relied on by him is “real”, that is more than “fanciful” or “merely arguable.” The test to be applied was summarised by Sir Andrew Morritt V-C. in Celador Productions Ltd v. Melville [2004] EWHC 2362 (CH) at paragraphs 6 and 7.
5. Although the test can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the “no real prospect of success” test on an application for summary judgment (or on an application for permission to appeal, where a similar test is applicable) than in trying the case in its entirety (or, in the case of an appeal, hearing the substantive appeal). The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.
….
9. I also wish to say a few words about the litigation expectations and tactics of claimants and defendants. Claimants start civil proceedings (including intellectual property actions) in the expectation that they will win and often in the belief that the defendant has no real prospect of success. So the defence put forward may be seen as a misconceived, costly and time-wasting ploy designed to dodge an inevitable judgment for as long as possible. There is also a natural inclination on the part of optimistic claimants to go for a quick judgment, if possible, thereby avoiding the trouble, expense and delay involved in preparing for and having a trial.
10. Everyone would agree that the summary disposal of rubbishy defences is in the interests of justice. The court has to be alert to the defendant, who seeks to avoid summary judgment by making a case look more complicated or difficult than it really is.
11. The court also has to guard against the cocky claimant, who, having decided to go for summary judgment, confidently presents the factual and legal issues as simpler and easier than they really are and urges the court to be “efficient” ie produce a rapid result in the claimant's favour.
12. In handling all applications for summary judgment the court's duty is to keep considerations of procedural justice in proper perspective. Appropriate procedures must be used for the disposal of cases. Otherwise there is a serious risk of injustice.
…
17. It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given (see Civil Procedure Vol 1 24.2.5). A mini-trial on the facts conducted under CPR Part 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.
18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.”
Finally, it is helpful to have in mind the test summarised by Sir Andrew Morritt V-C in Celador Productions Ltd v. Melville [2004] EWHC 2362 (Ch), to which Mummery LJ referred in Doncaster Pharmaceuticals:
“6. The relevant test is laid down in CPR Rule 24.2. The court may give summary judgment against a claimant or a defendant if it considers that the claimant or defendant has “no real prospect of succeeding” on its claim or defence as the case may be and that “there is no other compelling reason why the case or issue should be disposed of at a trial”. I have been referred to a number of relevant authorities by counsel for Celador and Mr Melville, namely Swain v Hillman [2001] 1 All ER 91, 94–95, Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 , 259–261 paras 90–97 and ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 paras 8–11. In addition I was referred to the notes in Civil Procedure 2004 Vol.1 paras 24.2.1, 24.2.3–24.2.5.
7. From these sources I derive the following elementary propositions:
a) it is for the applicant for summary judgment to demonstrate that the respondent has no real prospect of success in his claim or defence as the case may be;
b) a “real” prospect of success is one which is more than fanciful or merely arguable;
c) if it is clear beyond question that the respondent will not be able at trial to establish the facts on which he relies then his prospects of success are not real; but
d) the court is not entitled on an application for summary judgment to conduct a trial on documents without disclosure or cross-examination.”
Mr Allen says that all these observations are directly relevant to this case, raising as it does acute conflicts of fact and intricate questions as to such matters as the nature and extent of the similarities between the works; how they came about; whether they are unusual in children’s literature; and whether the degree of originality or specificity of these features, taken as a whole, is such that they amount to substantial part of WTW.
The issues
This is not a case in which it is alleged that there has been word for word copying. The case is rather that aspects of the plot, sub-plots, themes and incidents in WTW have been copied into Goblet. Nevertheless, the approach to be adopted by the court remains essentially the same, as explained by the Court of Appeal in Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2007] FSR 24. That case concerned an allegation that in writing a book called The Da Vinci Code Dan Brown infringed the copyright in what was described as a book of historical conjecture called The Holy Blood and the Holy Grail (“HBHG”). Lloyd LJ explained the task of the court in this way at [4]-[7]:
“4. The claim for breach of copyright is in some respects unusual, but it has to be tested by reference to the same principles as would be relevant in a more conventional case. If material is found in a later work which is also in an earlier copyright work, and it is shown that the author of the later work had access to the earlier work, an inference of copying is raised. Then it has to be considered whether there was in fact any copying, in relation to which the later author may say that he obtained the material from his own unaided efforts or from a different source. If it is found that any of the material common to both works was copied from the earlier work, then the question arises whether what was copied was a substantial part of the earlier work.
5. If the copyright work in question is a literary work, the allegation will normally be that part of the text of the earlier work was copied, exactly or with some modification, in the creation of the later work. In the present case that is not what is alleged as the basis for the claim in copyright infringement. What is said to have been copied is a theme of the copyright work. Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the cases in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.
6. The point was mentioned by Lord Hoffmann in the House of Lords in Designers' Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 W.L.R. 2416, at paragraph 24, which concerned artistic copyright:
"there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work."
Lord Hoffmann addressed the point usefully in paragraphs 25 and 26 as well:
"25….The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work…
26. Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented."
Lord Scott made a similar point at paragraph 64, quoting first a test proposed in Laddie, Prescott & Vitoria, The Modern Law of Copyright, to determine whether an altered copy constitutes an infringement:
"'Has the infringer incorporated a substantial part of the independent skill, labour etc contributed by the original author in creating the copyright work?'
My Lords, I think this is a useful test, based as it is on an underlying principle of copyright law that a copier is not at liberty to appropriate the benefit of another's skill and labour."
7. Accordingly, the judge had to consider:
i) what relevant material was to be found in both works;
ii) how much, if any, of that had been copied from HBHG;
iii) whether what was so copied was on the copyright side of the line between ideas and expression; and
iv) whether any of the material that was copied and did qualify as expression, rather than as ideas, amounted to a substantial part of HBHG.
The third and fourth of these issues, as often, are interconnected.”
By “relevant material”, I understand Lloyd LJ to have been referring to the material found in the later work which is also to be found in the earlier work. Once such material has been identified, two fundamental questions fall to be answered; first, whether that material was copied from the earlier work; and second, whether it amounts to a substantial part of the earlier work. In assessing that second question the court must consider whether what has been copied falls on the ideas side of the line, or the expression side, for copyright only protects the expression of ideas, not the ideas themselves.
Mummery LJ broke the process of analysis down still further at [122]–[124], identifying six issues which will normally need to be considered. He also reiterated the principle that proof of similarity between the alleged infringement and the copyright work, coupled with proof of access to the original, is prima facie evidence of copying for the defendant to answer:
“122. In particular, in cases in which the issue of copying has to be decided on disputed evidence the court should be guided by the sound legal principle that proof of similarity between the alleged infringing work and the original copyright work, coupled with proof of direct or indirect access to the original, is prima facie evidence of copying for the defendant to answer: Francis Day & Hunter v. Bron [1963] Ch 587 at 612 per Wilberforce J (a wise judgment, which does not seem to have been cited to the judge).
123. The application of this principle and some reference to the applicable provisions of the 1988 Act (none of which feature in the judgment) would, I think, have disciplined the reasoning and strengthened the structure of the judgment.
124. The following issues frequently arise for decision in proceedings for infringement of literary copyright under the 1988 Act. Although this is not an exhaustive check list, the following are worth bearing in mind as issues that will usually need to be considered, preferably in a chronological setting or, in more complicated cases, of sub-sets of chronologies.
(1) What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying and an allegation of infringement should never get as far as legal proceedings, let alone a trial. The 1988 Act confers on the owner the exclusive right "to copy the work" either directly or indirectly (section 16). This is not an exclusive right to prevent the publication of a work on a similar subject or a work which happens to contain similar material, thematic or otherwise.
(2) What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential if the Claimants are to prove that the Defendant's work is a copy.
(3) Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work?
(4) If the Defendant contends that no such use was made, what is his explanation for the similarities between the alleged infringing work and the original copyright work? Are they, for example, coincidental? Or are they explained by the use of similar sources? If the latter, what are the common sources which explain the similarities? How were the sources used by the authors of the respective works?
(5) If, however, use was made of the original copyright work in producing the alleged infringing work, did it amount, in all the circumstances, to "a substantial part" of the original work? The acts restricted by the copyright in a literary work are to the doing of them "in relation to the work as a whole or any substantial part of it". See section 16(3)(b) of the 1988 Act.
(6) What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as "a substantial part" of the original copyright work?”
Adopting this approach in the context of the present application, it seems to me the first task is to identify and consider, at least in general terms, the similarities relied upon and then to address the two main issues between the parties, namely:
whether Mr Allen has a real prospect of establishing that Ms Rowling had access to WTW when writing Goblet and copied from it;
whether Mr Allen has a real prospect of establishing that the similarities relied upon amount to a substantial part of WTW.
In so doing I recognise that overall the onus lies upon the defendants to establish that Mr Allen has no real prospect of succeeding in his claim.
The similarities
Mr Allen’s case is that WTW has five main plot elements and that these same elements are a theme of and important to the plot of Goblet. Off this spine of main elements are said to hang the ribs of the sub-plots, themes and incidents of WTW. Element 1 possesses 12 such sub-elements; element 2, 1 sub-element; element 3, 4 sub-elements; element 4, 2 sub-elements; and element 5, 3 sub-elements. Each of these sub-elements is also said to be found in Goblet, making a total of 27 similarities.
The parties have set out their respective contentions in relation to these similarities in a series of schedules, and I have been taken through many of them in the course of this application. They are undoubtedly complex and reveal significant disputes as to whether the similarities exist at all and, if they do, as to whether they are not original or even commonplace. For the purposes of this part of the analysis I shall confine myself to a consideration of similarity but must begin with a brief overview of the two books so the allegations may be seen in context.
WTW is a 16 page novella recounting the adventures of an adult wizard called Willy who lives in Memories Hideaway with his apprentice wizards. The story begins with him leaving home by magical means to attend a wizards’ conference in Napoleon’s Castle for the inauguration of a year of wizards’ contests. It is announced at the conference that each wizard will be given details of various contests, prizes and penalties. Willy returns home where, relaxing in his magical bath, his contest is revealed. It involves gaining access to Livid Land and releasing female prisoners, with forty points awarded for each prisoner rescued. Livid Land is a dangerous place populated by Kanganatives and ruled over by a half-animal, half-human called Angry Sam. Willy sets about devising a rescue plan which he puts into practice with the assistance of his apprentices, the Angel Squadron, the Pixie Elf Brigade and his tame eagle, Anna. It is reported to Willy that the Kanganatives have an addiction to chocolate so Willy dispatches his Angel Squadron to deliver his special sleep inducing chocolate which melts over Livid Land sending the natives to sleep and allowing the prisoners to escape.
Goblet is an altogether more complex book extending to over 600 pages recounting a year in the life of Harry who is now 14 years old and once again immersed in a series of adventures involving the evil Lord Voldemort. The following is merely an outline of the principal events of relevance to the present claim.
In the summer before school begins, Harry and Hermione stay with the Weasley family, greatly excited because Mr Weasley has secured tickets for the Quidditch World Cup to which they travel using Portkeys, objects used to transport wizards from one spot to another. Unfortunately a cloud is cast over the event because Lord Voldemort’s servants, the Death Eaters, appear and they bully and harass the Muggles until Voldemort’s Mark appears in the sky.
At the end of the holidays, Harry and his friends return to Hogwarts on the Hogwarts Express where, at the welcoming feast, Professor Dumbledore announces that Hogwarts is to host the Triwizard tournament between the Hogwarts, Beauxbatons and Durmstrang wizard schools. The tournament is to involve three tasks spaced through the year. Three champions are to compete, one from each of the participating schools and chosen by the Goblet of Fire. They are to be marked on how well they perform each of the tasks and the champion with the highest total will win the Triwizard cup. Fleur Delacour is chosen for Beauxbatons, Viktor Krum for Durmstrang and Cedric Diggory for Hogwarts. Then, strangely, Harry’s name also emerges as a fourth competitor.
The first task involves seizing a golden egg protected by a dragon, a task which all the champions accomplish, with Harry and Viktor scoring the highest marks. The second task requires the champions first to solve a clue inside the golden egg, so revealing the task and enabling them to prepare for it. With some assistance from Cedric and Moaning Myrtle, Harry partially solves his clue by immersing himself in a pool like bath. This allows him to understand the voices emerging from the egg, from which he deduces he has to retrieve something important from the Hogwarts lake. With yet further help from Dobby, he realises he has to rescue Ron and that by eating Gillyweed he will be able to breathe underwater. After evading the merpeople, Harry finds Ron, Hermione, Cho Chang and Gabrielle, Fleur’s sister, held as hostages deep in the lake. Cedric rescues Cho and Viktor rescues Hermione. But seeing no sign of Fleur and fearing that Gabrielle will be left behind, Harry rescues her as well as Ron. As a result he finishes last but is nevertheless awarded points for moral fibre leaving him overall tied in first place with Cedric. The final task requires the champions to navigate a maze filled with magical and dangerous obstacles, with the winner the first to seize the Triwizard cup. Harry helps Cedric on several occasions so, just as Cedric is about to triumph, they agree to take hold of the cup together, securing a tie and victory for Hogwarts. But now it emerges Harry has fallen into a trap and the cup is a Portkey which transports Harry and Cedric to a graveyard where Lord Voldemort is waiting. Cedric is killed but eventually Harry escapes and makes his way back to Hogwarts where, in the course of further revelations and adventures, he is handed his winnings of 1,000 galleons which, in light of his part in Cedric’s death, he does not wish to accept and so gives away to his friends, Fred and George.
I can now address the five main elements of plot architecture. In summary they are:
the main characters of WTW and HPGF are wizards who are to compete in a wizard contest which they ultimately win (element 1);
the main characters are required to deduce the exact nature of the main task (element 2);
the main characters uncover the nature of the main task covertly in a bathroom (element 3);
the main characters complete the main task using information gained from helpers (element 4);
the main task for the main characters involves the rescue of human hostages imprisoned by a community of half-human, half animal creatures (element 5).
Element 1
It is true that Willy and Harry are both wizards who are to compete in a wizard contest but it is apparent from my brief summary of the two books that both the wizards and the contests are very different. Harry is a schoolboy wizard whereas Willy is a grown man and fully qualified and described as having “5 stars”. As for the contests, Willy’s task is to gain entrance to Livid Land and secure the release of the female prisoners, while Harry participates in the Triwizard competition. Willy is described as having won his wizard’s test, with the prisoners being set free. But Harry’s position is not so clear. He and Cedric take the Triwizard cup at the same time, and it is only after Cedric’s death that Harry is given the winnings of 1,000 galleons.
Element 2
Willy is not aware of the nature of his task until it is revealed to him as he lies in his magic bath. Relaxing in the treated water he feeds the contest details into a selector mechanism and the details of the task appear on a screen.
Harry, on the other hand, is faced with three tasks. The first, collecting the golden egg, is revealed to all the competitors by Bagman shortly before it is due to begin. It is not revealed to them in advance because it is designed to test their daring. The second, upon which it seems Mr Allen primarily relies, involves rescuing a hostage and does indeed require the competitors to decode what it is they have to do. The third, like the first, requires no deduction. Bagman describes it to the competitors as being “very straightforward”. The Triwizard cup will be placed in the centre of the maze. The first champion to touch it will receive full marks.
In summary, therefore, I accept that Willy is not aware of the nature of his task when it is first given to him and that the competitors in the Triwizard tournament have to deduce the nature of the second task in advance. I do not, however, accept that Willy is required to engage in any process of deduction. Further, I consider it highly debatable whether the second Triwizard task is any more significant than the first and third tasks and so can properly be characterised as the main task as alleged. Nevertheless, for the remainder of this analysis, I shall assume that it is.
Element 3
It is true to say that Willy’s task is revealed to him as he lies in his bath in what is described as his “bathroom-cum-study”. It is here that he is able to do his best thinking immersed in water treated with Aqua Superba, a magical additive. No one else is present and in that sense he is in private but there is no suggestion that he is acting ‘covertly’.
As for Harry, he has to solve the clue inside the golden egg but every time he opens it, it emits a horrible wailing noise. It is Cedric who suggests to him that he should mull things over in the hot water of the Prefects’ bathroom, which Harry sneaks into in the middle of the night, bolting the door behind him. He runs a bath the size of a swimming pool with various kinds of magical bubble bath. To his surprise and embarrassment, Moaning Myrtle has been spying on him but helpfully suggests he should open the egg under the water, which Harry duly does, whereupon he hears a chorus of eerie voices singing a riddle. In both books, therefore, there is a similarity in that the main characters take a magical bath with magical bath additives and in the course of which at least an aspect of the task they have to perform is revealed. But, as I hope I have made clear, the ways in which these ideas are developed are very different.
Element 4
Willy certainly relies on information provided to him by his helpers to complete the task. He is briefed on Livid Land by his apprentices Tinken, Taylor and Soldyar. The Pixie Elf Brigade and, in particular, Bimbo Sad-Eyes send back valuable reports from the field and the rescue is carried out by the Angel Squadron.
Harry too relies on information provided to him by others. I have referred to Cedric and Moaning Myrtle in addressing Element 3. In addition, Ron and Hermione assist him by looking for spells and then, crucially, it is Dobby who helps him to understand that his task is to rescue Ron and that eating the Gillyweed will allow him to breathe underwater. Once again, therefore, the similarity is in the idea of using information gleaned from helpers rather than the detail in which that idea is implemented.
Element 5
Willy’s task is to release the female prisoners held in Angry Sam’s compound in Livid Land’s capital known as Kanga City and this requires incapacitating the Kanganatives, a people apparently descended from Angry Sam and, like him, half-human and half-kangaroo, and also an indoctrinated Italian sailor who seems to be the prison guard.
The second task in the Triwizard tournament involves the rescue of the fellow child wizards held hostage at the bottom of the lake. Harry finds they are surrounded by merpeople who have some human features such as eyes, hair, teeth, hands and an ability to speak but greyish skins and powerful fishtails. Behind them is a gigantic stone statue of a merperson to which the four hostages are tightly bound. The merpeople are holding spears and Harry fears they will charge at him. But in fact they do nothing to prevent him rescuing Ron although they attempt to hold him back when he tries to rescue Hermione too. I believe the books therefore share this element to the extent that they both involve the rescue of humans (though human wizards in Goblet’s case) apparently held captive by a community of half-human, half-animal creatures.
The sub-plots, themes and incidents
These involve a measure of repetition and elaboration of the five main elements of plot architecture. But I think the following points relied on by Mr Allen merit individual consideration. Again I will address them by reference to the elements to which they relate.
Element 1: sub-elements
Both Willy and Harry are transported by various magical means including touching magical devices such as a dagger, a tall retort pipe and a velvet ladder in the case of WTW (to Napoleon’s Castle), and an old boot in the case of Goblet (to the Quidditch World Cup). Both books also involve magical trains but they have very different purposes. In WTW, the trains do not appear to have any destination but provide somewhere for the wizards to play chess. In Goblet, the Hogwarts Express takes the young wizards to school.
A measure of regulatory control is also imposed on the wizards in both books. WTW describes rules placed on the visitors to Napoleon’s Castle. In Goblet, the Ministry of Magic oversees fair play and the Triwizard tournament sees the Heads of the competing schools as judges. In addition, both books describe penalties for the misuse of magic, though in different contexts. Spells are prohibited in Napoleon’s Castle and certain spells are prohibited at Hogwarts.
The wizard contests are both announced in a Great Hall; in Napoleon’s Castle in the case of WTW, and in Hogwarts in the case of Goblet. They each appear to take place within a year and the wizards from whom the competitors are drawn appear to have different nationalities and to have come from a number of different countries. In WTW, the prize for the competition is 40 points for each prisoner rescued. Wizards receiving more than 1000 stars will receive life membership of Stellar Land. It is not explained, however, how 1000 stars may be won. In Goblet, there is a point score for the first two tasks and a 1000 Galleon personal prize for the overall winner.
WTW and Goblet both describe the arrival of a French wizard in a magical carriage drawn by magical animals, Duke Louis Dix-Sept in WTW and Madame Maxine in Goblet. In each case the wizard makes a dramatic and impressive entrance.
Element 2: sub-elements
The only point here is one of elaboration. It is said that in WTW the contest is announced and Willy discovers the nature of the task later. In Goblet, much the same sequence occurs in that the contest is announced but not the nature of the task. It is only later that Harry discovers what it is.
Element 3: sub-elements
Both Willy and Harry discover the important information concerning their tasks while sitting in baths with magic additives which are only available to higher status wizards. In WTW, Aqua Superba, the mind clearing additive, is only available to five star wizards. In Goblet, Harry has gained access to the bathroom with magical bubble bath which is reserved for Prefects. In both cases at least part of the message is presented to the reader.
Element 4: sub-elements
It is said that Willy and Harry both rely on numerous helpers who assist them in their strategies by providing them with vital reports and information which they have gained by eavesdropping, and that some of this information is provided at the last minute. I agree to the extent that Apprentice Delight joins Sad-Eyes to provide Willy with a last-minute intelligence report. Similarly, both Moaning Myrtle and Dobby provide Harry with vital last minute information which he needs to understand and perform the second task, and they have learnt that information secretly, Moaning Myrtle having watched Cedric open his egg underwater and Dobby having overheard two teachers discussing the task.
A further feature of similarity is a degree of protest by the helpers. So WTW opens with a reference to his apprentices having given Willy a gift of an elaborate laboratory in protest at the conditions in which they formerly worked. In Goblet, Dobby has found it difficult to get work because he was dismissed from his last position because he wanted to be paid.
Element 5: sub-elements
These too can be dealt with quite shortly. Both tasks involve overcoming a physical barrier and rescuing the prisoners from an isolated location, an island in WTW and the lake bottom in Goblet. Further, the prisoners are held by communities of half-human, half-animal people, the Kanganatives in WTW and the merpeople in Goblet.
Access and copying
As I have mentioned, it is Mr Allen’s case that Mr Little was given copies of WTW in 1987; and that Mr Little gave a copy to Ms Rowling at some point before she wrote Goblet, or any of the other Harry Potter books.
The defendants dispute this, saying that Ms Rowling did not have access to or copy WTW when she wrote Goblet, that she became aware of it only in 2004 and saw a copy for the first time in 2010. They rely in support of this case on statements from Mr Little and from Ms Rowling.
Mr Little’s evidence is that he was introduced to Mr Jacobs through a friend, Mr David Markson, and that the three of them met for lunch at the Casanova Club in September 1986. Mr Little recalls that on visiting Mr Jacobs’ flat after lunch, he was shown a copy of what he believes was WTW, by that time a printed piece of work which was very thin and contained a number of illustrations. Mr Jacobs explained that he had written the book for his son and that he used to read it to him at night. Mr Little says he was embarrassed by the work because it was extremely poor and he remembers sitting in the flat wondering how politely to reject Mr Jacobs’ desire for representation. He recalls saying to Mr Jacobs that that he did not really think it was something for his agency and he did not deal in illustrated works either.
Mr Little also says he was not given a copy of the work at or following the meeting. He is sure he would not have taken a copy away with him because he recalls thinking it was “absolute rubbish”. As far as he is concerned, the end of the meeting was the end of his dealings with Mr Jacobs and with WTW. He did not meet Mr Jacobs again and did not see a copy of the book again until notified of this claim.
Mr Little’s account is disputed in a number of important respects by Mr Markson, an author represented by Mr Little in the 1980s and a friend of Mr Jacobs, Mr Nick Tidnam, the illustrator of WTW, Mr Broderick Munro-Wilson, a banker and friend of Mr Jacobs, and Ms Susan Crow who typed the manuscript of WTW for Mr Jacobs.
The key aspects of their evidence are as follows. Mr Jacobs lived at 17 Cavendish Avenue in St John’s Wood until late 1986 or early 1987 at which time the house was bought by one of Mr Munro-Wilson’s family trusts and Mr Jacobs moved to a flat in Davies Street, Mayfair.
Mr Munro-Wilson explains that by 1987 Mr Jacobs had become close to Mr Munro-Wilson’s two daughters, Emma and Charlotte, respectively about eight and nine years old, who were fascinated by the stories which Mr Jacobs told them concerning the adventures of a wizard called Willy. Mr Munro-Wilson discussed with Mr Jacobs how he could make more use of his story-telling gift and perhaps adapt his stories for television.
This account is consistent with the evidence of Mr Markson and Mr Tidnam. Mr Markson says that Mr Jacobs wrote WTW in about three weeks in the spring of 1987. Mr Tidnam says he met Mr Jacobs in the spring of 1987, at which meeting Mr Jacobs asked him if he would be prepared to provide some illustrations for a story he had written. Mr Jacobs said he would send him the text and, shortly afterwards, Mr Tidnam duly received it and was left to develop his own visual interpretations of it. Mr Tidnam met Mr Jacobs again at his Mayfair flat in the early summer of 1987. Mr Markson was also present and together they had lunch at the Casanova Club. Mr Jacobs made it clear to Mr Tidnam that he had a “free rein” in relation to the illustrations. Shortly afterwards, Mr Tidnam was told by Mr Cecil Turner, of the publishers Bachman & Turner, whom Mr Jacobs had evidently by that time approached, that he had to produce the illustrations very quickly but in the event he did not manage to complete them until the end of August, allowing the book to be printed and published in October 1987.
The account is also consistent with the evidence of Ms Crow who says that she typed up the manuscript of WTW in 1987 and that she recalls visiting Mr Jacobs’ flat in October 1987 on the day boxes containing the printed and published version of WTW arrived. She also says that she does not know what inspired Mr Jacobs to write WTW but it cannot have been to read it to his son, Jonathan, as suggested by Mr Little, because by that time he was already about 20 years old.
All of this evidence means it is clearly arguable that Mr Little’s evidence as to his meeting with Mr Jacobs and what was said is not correct, in that in September 1986 Mr Jacobs was not living in his flat in Mayfair but rather in his house in St John’s Wood, and that by that time WTW had not been written, let alone typed, illustrated and printed. Moreover, the suggestion that Mr Jacobs told Mr Little that he had written the story for his son and read it to him at night is not consistent with the evidence of Mr Munro-Wilson.
More fundamentally, Mr Markson says that in the spring of 1987 he was asked by Mr Jacobs to contact Mr Little on his behalf to see if he would be willing to act as Mr Jacobs’ literary agent. Mr Markson was a client of Mr Little so it was easy for him to do so. Mr Jacobs and Mr Markson subsequently met Mr Little at the Casanova Club in the spring of 1987 during which meeting Mr Jacobs gave Mr Little a manuscript copy of WTW. After lunch they went to Mr Jacobs’ flat where Mr Little insisted that Mr Jacobs sign a contract, which he duly did. A few weeks later Mr Little returned and the three of them had a further lunch at the Casanova Club, in the course of which Mr Little showed Mr Jacobs and Mr Markson various rejection letters Mr Little had received back from publishers. However, despite these rejection letters, Mr Little was very enthusiastic about the book and the feedback it had received in terms of the ideas it contained. Mr Markson continues that Mr Little made it plain that the book needed to be re-written but he was nevertheless very excited about a number of ideas which he considered were new to the wizard genre. Mr Jacobs apparently rejected this advice and decided that the book was good enough as it was to be published, and so reached an agreement with Bachman & Turner to print an initial run of 5,000 copies.
Mr Markson continues that the first delivery of books was made to Mr Jacobs’ flat in late October 1987. Almost immediately, Mr Jacobs asked Mr Markson to take 1,000 copies to Mr Little’s offices. The books were delivered in two batches, the first with the assistance of Ms Crow. The second batch was delivered shortly after and Mr Markson recalls that by this time a number of copies had been put out on display.
This evidence is strongly disputed by Mr Little. He maintains that WTW is an appalling book, that Mr Jacobs did not give him 1,000 copies of it and there would have been no point in him doing so, and that he never agreed to represent Mr Jacobs.
Plainly these are disputes which I cannot resolve upon this application. But the evidence to which I have referred raises a real possibility that Mr Little’s account of events is simply not correct. Mr Allen submits that if, as he proposes to contend at trial, Mr Little has not been frank in his account of dealings with Mr Jacobs and Mr Markson and has sought falsely to claim that he never had a copy of WTW, and minimise his dealings with Mr Jacobs, then it raises the question as to why he would do this. He contends that one obvious inference is that Mr Little did indeed have copies of WTW in his possession and passed one on to Ms Rowling.
That brings me to Ms Rowling’s evidence, the substance of which I have set forth at [6] and [7] above. In summary, she says that she approached Mr Little in 1995, not the other way around; that when she did so she had already written Harry Potter and the Philosopher’s Stone and had mapped the other books out; and that Mr Little neither encouraged her to use any themes or ideas from other books nor provided her with any other books for that purpose. Further, she says she had not seen a copy of WTW before the issue of the present claim.
I have to say I find Ms Rowling’s evidence very powerful and Mr Allen has no direct evidence with which to challenge it. I also consider there to be considerable force in the point advanced by the defendants that WTW is not a work that has achieved any degree of success and so it is inherently improbable that Mr Little would have thought it worth giving a copy to Ms Rowling some eight years later.
Nevertheless, there are a number of other matters which I must also take into account. The first is that, despite requests, Ms Rowling has declined to disclose the manuscripts of Harry Potter and the Philosophers Stone, including those incorporating Mr Little’s suggestions for amendment, whatever they may have been, or Goblet or a series of crammed notebooks in which she says she recorded her ideas. Moreover, although Mr Little claims in his evidence to have consulted his diaries, these have not been disclosed either (save for the entry for 19 September 1986), with Bloomsbury’s solicitors saying they have not taken them into their control. In these circumstances Mr Allen says, in my view with some justification, that he has not been afforded an opportunity to test the evidence given on behalf of the defendants against the relevant documents.
Mr Allen’s case is also supported by two experts. The first is Mr Nicholas Tucker, a former Senior Lecturer in Cultural Studies at the University of Sussex and a specialist in the study of children’s literature.
Mr Tucker recognises that there are marked differences between WTW and Goblet, with Goblet having a much more complex plot and a large cast of characters, many closely defined. However, in terms of the overall atmosphere of a story about modern wizards set in contemporary times and the selection of particular details, he considers there are some marked similarities. By way of example, he refers to the following.
Both Willy and Harry are wizards who compete in an international contest of wizards in which they are successful. This, says Mr Tucker, is an uncommon plot in fantasy stories. He also considers it rather striking that both characters contrast sharply with the image of an elderly, all-powerful, all-knowing wizard of the type found in many previous stories. Hence, although Willy is middle aged, he is childish in his exuberant use of language. Harry is of course a child, and he shares some of Willy’s interest in sweet drinks and food.
Further, Willy has the nature of his task revealed to him while he is taking a magical bath. Harry also discovers something about the nature of the second of his three tasks while he is taking a magical bath. This, says Mr Tucker, is a striking similarity and a key element of both plots and, he continues, descriptions of characters taking baths are rare in children’s fiction.
As for the nature of the tasks, Mr Tucker considers it significant that they both involve the rescue of others detained by half-human, half-animal creatures. Mr Tucker recognises that rescuing those in peril is a standard part of many adventure stories but says that rescuing them as part of an organised competition is new.
It will be noted that these points broadly track the five main elements of plot architecture upon which Mr Allen relies. But Mr Tucker also refers to many other points of similarity, namely wizard imprisonment in dedicated wizards’ prisons; descriptions of or allusions to a time of protest by those living and working in poor conditions; hospitals for wizards; magical trains; wizard newspapers; lawnmowers with unusual powers; and a French notable arriving in great pomp in a fantastical animal drawn carriage.
Overall, Mr Tucker considers that there are a number of original and unusual plot ideas and devices in WTW which are not to be found in earlier children’s literature but which do appear in Goblet and that their number is such that he finds it very hard to accept that they can be attributed to pure coincidence. He concludes:
“The tone of both books also has much in common. Both mix excitement with humour and both show an exuberant quality of invention when it comes to describing magical beings, happenings and institutions. Mention in both novels of wizard marketing, wizard newspapers, wizard prisons and a magical village of brewers, have not been common in wizard-themed stories up to the present. I also know of no other stories involving wizards taking part in a staged contest with each other, with the main characters in both novels solving problems associated with the coming contest while taking a bath. Both novels also feature the taking of hostages, whose final release would win points for the wizard able to bring this about. These repeated convergences suggest that at some stage, inadvertently or otherwise, some borrowing has taken place.”
The defendants have subjected Mr Tucker to vigorous criticism. They say he has wrongly limited himself to a consideration of children’s fantasy literature and that Goblet is not limited to this genre. They also say that if a wider genre is considered then it can be seen that the similarities relied upon are not unique to WTW at all, and for this purpose they rely upon an analysis conducted by Mr Benaim, a solicitor acting for Ms Rowling. Mr Allen replies that Mr Benaim’s analysis is itself inaccurate and also misstates what Mr Tucker says. But also, and more fundamentally, Mr Allen submits that it does not assist the defendants to point to the disclosure of particular individual ideas in different earlier works because it is the combination of features upon which he relies and they are only to be found in WTW and Goblet. In my judgment it is quite impossible to resolve disputes of this kind on a summary judgment application; it would involve a mini-trial of precisely the kind the Court of Appeal referred to in the Mentmore and Doncaster Pharmaceuticals cases.
The second expert is Dr Timothy Grant, the Deputy Director and a founding member of the Centre for Forensic Linguistics in the School of Languages and Social Sciences at Aston University. The science of forensic linguistics involves the use of various techniques to study the relationship between texts where one (the target text) is said to have been copied from another (the source text) or, in other words, to carry out a questioned author analysis. It has been used in the civil and criminal courts in the UK, by the security services and by universities and other academic institutions to determine authorship and to detect plagiarism. Two particular techniques are commonly used. The first, called word cluster analysis, involves a search to see whether particular clusters of words appear in the source and target texts and, if they do, an assessment of their significance by determining how common or rare they are. The second, called lexical sharing analysis, involves a statistical analysis of the proportion of nouns, verbs and adjectives shared between the texts. Both are based upon the observation that people absorb words and phrases from the material they read and then reproduce them elsewhere, a process known as lexical priming.
Dr Grant first produced a report for the estate of Mr Jacobs in 2004. Then, in April 2010, he made a witness statement on behalf of Mr Allen in response to this application in which he reviewed his 2004 report, provided further explanation of his methodology and the background science and confirmed the views he had earlier expressed. He states at paragraphs 62 and 63:
“62. …. I believe that the author of the HP books had seen and read a copy of WTW before they started writing any of the HP books. There is evidence that they consciously or unconsciously transferred some of the rare word clusters used in that book into their own writing. I am satisfied in particular that rare word clusters appear in both WTW and the HPGOF [Goblet].
63. There is a strong similarity and vocabulary overlap between some specific passages in the HP books and in WTW. Substantial proportions of the lexical vocabulary are shared between these books and I do not consider that this can be due to a similarity between the genres alone. My conclusion that the author of HPGOF has read WTW and transferred the language used in that book into their own language has not changed.”
Dr Grant places particular reliance in his witness statement upon the second and fourth word cluster analyses described in his 2004 report. In the second, Dr Grant identified a set of eight relatively frequently used words which appear over two pages describing the bathroom scene in WTW and in the whole of chapter 8 of Goblet which contains a description of the Quidditch World Cup. He continues that he could not find the same set of words on a Google literature search. In the fourth, Dr Grant identified a set of five words which appear over two pages in WTW and in the whole of chapter 6 of Goblet which describes the use of a Portkey to reach the Quidditch World Cup. In this case the internet literature search revealed just one other hit, a science manual for teachers.
Dr Grant’s lexical sharing investigation comprised an analysis of the two books to determine the proportion of words they had in common. He described the results as “startling”. In one case which involved considering five pages of Goblet, he found that 41% of what he described as “content” words were also to be found in WTW.
The defendants have mounted a robust attack on this evidence. As for the word cluster analyses, they say the words Dr Grant has chosen are not unusual, so it is hardly surprising they can be found in Goblet; that they are not in a genuine “cluster” in either WTW or Goblet; that the Google search used to establish that the clusters were rare was valueless because in 2004 very little out of copyright literature was available on line; and that none of the passages in which the clusters appeared in Goblet are said to have been copied. As for the lexical sharing analysis, the defendants say its main problem is that Dr Grant has given no adequate explanation of the degree of overlap one might expect to see occurring by chance; so there is no benchmark against which Dr Grant’s opinion can be tested.
I consider the defendants’ criticisms of Dr Grant’s evidence have considerable force but once again I do not believe I can reach a final view on the materials before me and that it is reasonable to suppose that a fuller investigation of Dr Grant’s opinions and the basis for them may well affect the outcome.
It follows that the defendants have not established that Mr Allen has no real prospect of establishing that Ms Rowling did not have access to WTW when writing Goblet and copied from it.
Reproduction of a substantial part
This brings me to the final question on this application, namely whether the similarities relied upon amount to a substantial part of WTW. If they do not then the claim must necessarily fail even if those similarities are the result of copying.
The defendants say that the similarities I have referred to are high-level ideas and not protected by copyright. Mr Allen counters that the similarities are extensive and obvious, that they represent the expression of original ideas and that taken as a whole they do constitute a substantial part of WTW; and certainly this matter cannot be determined on a summary basis before trial.
I have been taken by both sides to a large number of authorities from the decision of the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1WLR 273 to the recent decision of Arnold J in SAS Institute Inc v World Programming Ltd [2010] EWHC Civ 1829 (Ch), but for the purposes of this application I believe I need only refer to the decision of the Court of Appeal in Baigent in which the distinction between ideas and expression in a case such as the present was specifically considered. I have already set out key passages from the judgments of Mummery and Lloyd LJJ at [15]-[17] above. Mummery LJ returned to the issue at [140] – [141] in considering the nature of the copying alleged:
“140. It is unhelpful, as was done in some of the submissions to the judge and to this court, to use loose non-statutory terminology when characterising the nature of the copying alleged. For example, reference has been made in this case to “language copying” and also to “textual copying”. The 1988 Act does not use these expressions to describe the nature of the copying of a literary work. The relevant statutory provisions refer simply to copying a substantial part of a work. The nature, form and extent of copying differ from case to case. If distinctions are to be drawn in respect of the nature of copying, it is important to be clear about what they are and what effect they have on establishing infringement.
141. For example, it is easier to establish infringement of the copyright in a literary work if the copying is exactly word for word (verbatim or “slavish” copying), or if there are only slight changes in the wording, perhaps in some optimistic attempt to disguise plagiarism. The essence of literary copyright is proprietary protection (in the form of exclusive rights to do acts restricted by the copyright in the work) for a literary work in recognition of the investment of effort, time and skill in reducing it into material form, such as words, signs and symbols. Although there is no objection to calling word for word copying “language copying”, it is, in my view, potentially confusing to describe it as “textual copying” and it is better to avoid the use of that expression. The “text” of a literary work may cover more than the particular words in which it is expressed and extend to its overall content, including the selection, arrangement and development of ideas, theories, information, facts, incidents, characters, narrative and so on.”
He then addressed the assessment of substantial part and explained at [143]-[148]:
“143. The decision on the substantiality or otherwise of the copying of HBHG in DVC required a careful assessment or evaluation of all the relevant evidence by the fact-finding tribunal in the context of the pleaded case. This included the nature and extent of the copying, having regard to the importance, as well as the amount, of what has been copied from the original work, and the nature of the respective works.
144. The 1988 Act does not define “a substantial part” or even indicate what factors are relevant to substantiality. I do not think that there is any real point in asking: what does “a substantial part” mean? That sort of question is only a path to a dictionary and to the dubious substitution or addition of other words which do not help to answer the crucial question of fact: is DVC a copy of “a substantial part” of HBHG?
145. It is more sensible to ask whether there exist in this case the necessary and sufficient conditions for characterising the parts copied from the original work as “a substantial part” of the original work. The decided cases help in identifying the relevant necessary and sufficient conditions for substantiality. Thus, it is not necessary for the actual language of the copyright work to be copied or even for similar words to be used tracking, like a translation, the language of the copyright work. It is sufficient to establish that there has been substantial copying of the original collection, selection, arrangement, and structure of literary material, even of material that is not in itself the subject of copyright.
146. It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work.
147. I agree with Lloyd L.J. that no clear principle can be laid down on how or where to draw the line between the legitimate use of the ideas expressed and the unlawful copying of their expression.
148. A judgment has to be reached by careful attention to the facts of each particular case. In this instance the amount of word for word similarity between HBHG and DVC was trifling in amount and importance. Only nine instances were cited in the claimants' pleadings. The judge was right to hold that they were not “a substantial part” of HBHG.”
Finally, he provided this helpful further guidance at [156]:
“156. The literary copyright exists in HBHG by reason of the skill and labour expended by the claimants in the original composition and production of it and the original manner or form of expression of the results of their research. Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about.”
Accordingly copyright does protect the content of a literary work, including the selection, arrangement and development of ideas, facts, incidents and the like. In assessing the crucial question as to whether a substantial part has been taken, the court must have regard to all the facts of the case including the nature and extent of the copying; the quality and importance of what has been taken; the degree of originality of what has been taken or whether it is commonplace; and whether a substantial part of the skill and labour contributed by the author in creating the original has been appropriated.
Applying these principles in the context of the present case, the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at his stage to say that Mr Allen’s case is so bad that I can properly describe it as fanciful. As the decision of the Court of Appeal in Baigent makes clear, a judgment has to be made as to where the line is to be drawn in the light of all the facts including the degree of originality of the literary material taken and its importance to the original work. Mr Tucker has given evidence that the similarities comprise ideas and devices which are original and unusual and constitute what he describes as plots and themes of WTW. Moreover they constitute, on Mr Allen’s case, the “spine” of five main elements and the “ribs” of some 22 sub-elements which run right through WTW. While I have expressed reservations about the repetition they involve, I accept that he has a real prospect of establishing that collectively they represent the core of its architecture.
Conditional order
The defendants submit that if I am against them on their substantive application then I should make a conditional order under CPR 24.6 requiring Mr Allen make a payment into court by way of security for costs with directions for a determination of the appropriate sum. Here they rely on what they describe as the shadiness of the claim and contend that I should infer from various matters to which they have drawn my attention that behind Mr Allen lies a consortium seeking to use this claim to extort a settlement from the defendants and sell more copies of WTW on the back of the publicity it generates. Mr Allen disputes these allegations but also says it is not open to the defendants to invite me to make such an order at this hearing in the light of a consent order made by Master Moncaster on 10 March 2010.
The starting point is the application issued by Bloomsbury on 21 December 2009. It sought (a) summary judgment on the ground that Mr Allen had no real prospect of succeeding in his claim; or in the alternative (b) as a condition of being allowed to proceed with his claim or pursuant to CPR 25, Mr Allen should provide security for costs. As I have mentioned, in February 2010 Ms Rowling was joined as second defendant and on 1 March 2010 she too issued an application for summary judgment. Shortly before Ms Rowling issued her application, Mr Allen’s solicitors wrote proposing that the application for security be dealt with after the application for summary judgment had been disposed of. By letter dated 2 March 2010, Bloomsbury’s solicitors replied stating that they were content that the two parts of their application should be heard separately, with the summary judgment applications of both defendants being heard first and Bloomsbury’s security for costs application adjourned to be heard shortly afterwards (preferably by the same judge), should it prove necessary. After a little more correspondence a consent order was prepared directing, in paragraph 1, that the part of Bloomsbury’s application which sought summary judgment should be heard at the same time as Ms Rowling’s application and, in paragraph 8, that the part of Bloomsbury’s application which sought security for costs be adjourned with liberty to restore. The order was duly made by Master Moncaster on 10 March 2010. As a result Mr Allen has prepared his evidence to address the summary judgment application but has not addressed the application for security for costs whether under CPR 24 or 25.
In the light of all these matters I do not believe it would be appropriate for me to decide the question of security at this stage. As the Court of Appeal made clear in Olatawura v Abiloye [2002] EWCA Civ 998, [2003] 1 WLR 275, in considering whether to make a conditional order requiring a party to provide security, the court has a wide discretion to ensure that justice is done. Relevant considerations may include the ability of the person concerned to pay, his conduct of the proceedings and the apparent strength of his case. Mr Allen has not had an opportunity to address the very serious allegations made against him, nor to adduce evidence as to whether an order for security would deny him access to the court, and I believe that justice demands that he be given one. Nevertheless, he accepts that if I have come to the view that, given the strength of the case, I am minded to make a conditional order, subject to further evidence and argument as to its basis and terms, then it is appropriate for me to so indicate.
Conclusion
For all the reasons I have given, I have reached the conclusion that this claim may succeed but that it is improbable it will do so. Accordingly, I am minded to make a conditional order. I will hear argument as to the appropriate directions for the final disposal of these applications if they cannot be agreed.