Analysing the legal meaning of ‘copying’ through an empirical study of UK substantial similarity copyright cases and psychological explanations of litigant trends

The question of whether something has been copied or not, and the extent of copying, is clear in cases of piracy or sampling, where the defendant takes the exact material from the claimant (literal copying). It becomes more problematic where the two works are similar but not identical (altered copying). The main problem for the law in altered copying cases is differentiating between a work that represents unfair copying against a work that represents ‘allowable’ reasons for any similarities, including coincidence or inspiration.

In practice, this problem is reflected in two main stages of a substantial similarity case. First, identifying whether the defendant actually copied from the claimant. Second, if there is copying, whether the extent of copying is substantial enough that the defendant should be held liable for copyright infringement. An example from UK case law, for instance, would be the Temple Island case, which involved comparing two works, both manipulated photographs showing a red bus in front of a monochrome background of the Houses of Parliament but with differences in the composition and angle of the subject matter. The difficulty here included assessing whether the defendant accessed and therefore copied the claimant’s work if there was no direct evidence, and assessing how ‘substantial’ the similarities were, given that there were slight differences in the images and the subject matter was a common representation of London.

This article takes copyright case law as a fruitful source to gain insight into how this area of law plays out in practice. As detailed later, the substantial similarity test and its corresponding idea/expression divide have been criticized, indicating that there is controversy regarding this area of law. This article’s aim is not to make an argument that the substantial similarity test should be reconsidered but rather to contribute empirical analysis on how the substantial similarity test is applied in real-life scenarios. This will allow a deeper understanding of litigant and judicial application of the legal criteria, and where areas of controversy arise in their understanding of what ‘copying’ means under copyright law. The discussion section will then draw on psychological studies to explore what the reasons for this may be, providing a new way to understand conflicting interpretations of the idea/expression divide.

The study analyses substantial similarity judgments using content analysis methods. This method is suitable for case studies investigating issues in the real-life context, and to investigate patterns of how particular concepts or terms are used and understood. Applied here, it is an effective method to explore how litigants and judges apply the legal concepts and factors in substantial similarity cases. It will identify what types of cases claimants bring, what defences defendants raise and whether there are patterns of losses for either party on specific legal factors. This approach focuses on analysing the stated legal factors in case judgments and thus does not engage in analysis of potential extra-legal factors influencing judicial decisions or litigant behaviour. The benefit is that it nonetheless provides an understanding of how legal factors are applied in cases that do make it to court, and where patterns of conflict occur between what litigants believe is arguable versus the court’s stated interpretations of the law.

The legal meaning of copying is reflected in the various stages of a copyright infringement claim which will be the subject of analysis for the empirical study. First, the law must determine if the claimant’s work falls within the scope of copyright protection—whether it has copyright subsistence. While the defendant may have ‘copied’ the claimant, they will not be held liable if what they copied is not capable of receiving copyright protection. In this instance, the ‘copied’ work falls within the public domain and so is available for the public to ‘copy’ without being subject to a copyright infringement claim.

Restrictions on the protectability of the claimant’s work in the UK include a range of factors. For instance, whether the claimant’s work fits within the list of protectable subject matter, whether the claimant’s work has sufficient originality and whether the claimant is the legal owner of the work. To the extent that these issues are raised as defences by defendants, they will be analysed in the content analysis.

If the claimant does have copyright subsistence, the second key legal issue is whether there is a causal link between the claimant’s and defendant’s work—did the defendant actually copy from the claimant? Here, the law acknowledges that works which look similar could be the result of coincidence rather than copying. The legal tests of access and similarity are used to support an inference of copying Did the defendant have access to the claimant’s work? Are the alleged similarities extensive enough to be indicative of copying? Courts will consider rebuttals to the charge of copying including evidence that the defendant independently created the work or that the alleged similarities are so commonplace that they are more likely the result of coincidence rather than copying.

Difficulties in establishing causality occur where there is no direct evidence that the defendant has access and the popularity of the claimant’s work. Criticisms have arisen regarding the extent to which such circumstantial evidence is an accurate indicator of defendant access.

If the defendant is held to have copied from the claimant, the final legal issue is whether the defendant copied a ‘substantial part’ from the claimant. Here, the law seeks to protect defendants who may have copied but nonetheless not substantially enough to hold them liable for copyright infringement. This can be seen as the difference between inspiration and copying. The legal approach is to undertake a qualitative comparison between the works, evaluating similarities and differences, and asking whether a substantial amount of the claimant’s creativity has been taken.

While these legal factors should theoretically achieve a fair balance between claimant and defendant, the substantial similarity test has been criticized for difficulties in its practical application. How should the qualitative assessment be applied to distinguish substantial from insubstantial similarities? What counts as a substantial amount of the claimant’s creativity? This has led many commentators to describe the substantial similarity test as ‘one of the most contentious and least precisely defined inquiries in copyright law’ and ‘the least susceptible of helpful generalizations’. Labelled as a ‘central puzzle’ for copyright law, it is argued that ‘its structure, scope, and purpose continue to confound courts and scholars – perhaps even more so … than the infamous fair use doctrine’. This reflects judicial perspectives themselves which acknowledge that the test is ‘of necessity vague’ and that the line drawn between what is protected and what is not ‘will seem arbitrary’.

The idea/expression divide has been established to guide the application of law in altered copying cases. The general principle is that an ‘idea’ cannot be protected but the ‘expression’ of that idea can. The purpose of the idea/expression divide is to limit the scope of copyright protection by separating the elements of the claimant’s work that should be protected (the ‘expression’) from the elements that should remain within the public domain (the ‘ideas’ that help form or are represented by that expression). This divide plays a role at several stages in a copyright infringement case.

For instance, copyright subsistence can be denied for an output that is interpreted to consist of an idea rather than an expression and therefore lacks originality. Regarding the causal link, similarities that are ‘commonplace elements’, ie ideas, will support an inference of coincidence rather than copying. If a causal link is established, courts will consider whether the ‘copied’ elements of the work are too general and abstract (ie ideas rather than expressions). Defendants will not be held liable for ‘copying’ these elements.

While the general guidance of the idea/expression divide is accepted by courts, it arguably still provides little assistance when applying the substantial similarity test. For instance, what part of the Temple Island photographs are the ideas which should not be protected, and which part are the expressions which should be? Several judges have thus noted it to be ‘impossible to define the boundary between mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other’, and that while ‘it is trite law that there is no copyright in ideas … it all depends on what you mean by “ideas”’.

From an academic perspective, judicial interpretation and application of the idea/expression divide in the UK has generally been criticized as being over-protective of the claimant. In other words, that courts take an overly expansive or abstract interpretation of ‘idea’, unfairly prohibiting the free expression and creativity of a defendant for taking a similar ‘idea’. In relation to UK cases, the Temple Island case which decided against the defendant has been criticized because the ‘ingredients of the motif, such as the Houses of Parliament, the red colour of the bus against the otherwise monochrome image’ should have been interpreted as an ‘idea’, thus free for the defendant to also use. Similarly the judgment in Bodo Sperlein faced criticism for finding that the defendant had substantially copied a tableware design of red berries on a branch. This is due to an interpretation that it is the ‘very abstract and simple idea of using dark red lines and dots to depict a branch of berries that is being copied’.

This article contributes empirical analysis to this debate by exploring litigant trends in altered copying cases. Which legal factors are most contested (indicated by defences raised and patterns of win rates), and do these reflect concerns of over-protection of claimants and controversy over the idea/expression divide? While the substantial similarity test and idea/expression divide have been criticized as difficult to define and apply, psychology is another discipline which like law attempts to provide an objective definition of creativity. This article will therefore also draw on psychology to provide explanations for the findings.

The relationship between copyright law and psychology has been explored by others for a range of issues and used in various ways to suggest copyright law reform. The general argument is that psychology provides important information on human behaviour, and therefore how copyright can better achieve the practical effects it desires, including incentivizing humans to create, collaborate with others and comply with copyright norms

This article draws on psychological studies in a different way. This is to shed light on how individuals understand creativity and therefore make judgments on the copying versus creativity of others. The discussion section compares psychological conceptions of creativity with how judges and litigants interpret creativity in copyright infringement cases. This will help explain where real-life areas of controversy are likely to appear between litigant and judicial application of the legal criteria and provide new understandings of how individuals interpret the idea/expression divide when assessing creativity. The psychological conception of creativity is wide and provides a framework for recognizing a broad range of cognitive processes as creative. The discussion section argues that the findings from the study indicate that judges do apply this wider conception of creativity to substantial similarity cases, and further that this may not necessarily lead to an over-protective approach to claimants.

Current empirical studies on copyright law cases have focused on the USA. This article will allow for a comparison between US and UK findings. US empirical studies on the substantial similarity test have found that claimants generally have a lower rate of success, particularly from 1995 onwards, with many claimant losses occurring at summary judgment. This is especially for circuit court decisions, with decisions by district courts finding in favour of the defendant only slightly more frequently. This has been explained in Asay’s study as despite courts finding relatively easily that there has been copying through evidence of access, defendants are able to argue that the copying is not ‘improper’ through copyright limitations such as the scénes-a-faire and the merger doctrine. Reference will be made to these US findings where relevant to test if the same conclusions are found in the UK.

Source: https://academic.oup.com/jiplp/advance-article/doi/10.1093/jiplp/jpaf032/8128938