Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 47
A537/09	OPINION OF LORD GLENNIE in the cause WILLIAM FORBES Pursuer; against STRATHCLYDE PARTNERSHIP FOR TRANSPORT AND ANOTHER Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: W. Forbes; Party Litigant

Defenders: Currie, Q.C.; Sheldon; Maclay Murray & Spens LLP

18 February 2011

[1] At the end of a hearing on the Procedure Roll on 18 February 2011, I delivered an ex tempore judgment dismissing the action. The pursuer intimated that he wished to reclaim. In those circumstances I agreed to issue a written version of my judgment. I have made grammatical and stylistic changes and also such revisions as are necessary for the purpose of clarification.

[2] The pursuer sues for infringement of copyright. He claims to be the author of some 26 documents or collections of documents which are lodged in process at 6/1a-z. Putting the matter very generally, they consist of texts and drawings, in the form of maps, diagrams and other representations, relating to a proposal for a fixed heavy rail link between Glasgow City Centre and Glasgow International Airport. The pursuer claims that his proposal, which he has been pursuing for very many years, has subsequently been adopted, to some extent at least (although in a way which he regards as inferior), by the defenders, whose own scheme now goes by the name of Glasgow Airport Rail Link or GARL. The pursuer claims that the defenders have infringed his copyright by copying his documents or, more precisely (taking the wording from his first plea-in-law), by making copies of the works or a substantial part thereof, by issuing copies of the works, by showing the works in public, by broadcasting the works on their website and by making adaptations of the works, and have profited as a result.

[3] The defenders have tabled pleas in law to the relevancy of the pursuer's averments and also a plea of no title to sue. These pleas came up for discussion on the Procedure Roll and this judgment is given in the light of the submissions I have heard from both parties. In considering the arguments and reaching my decision I am concerned only with the pursuer's case as pled by him. I am not concerned with resolving disputed issues of fact, nor with the merits of the defenders' answers. Following the well known approach laid down in Jamieson v. Jamieson 1952 SC(HL) 44, I have proceeded on the assumption that the pursuer's averments of fact in the Summons are true; and that I should only dismiss the action if, even on that assumption, I am satisfied that the pursuer cannot succeed in law in obtaining the relief concluded for.

[4] I take first the question of title to sue. The defenders say that the pursuer has not pled a relevant case of title to sue. From the 26 documents to which I have referred, which are incorporated into the pursuer's pleadings brevitatis causa, there appear to have been a number of contributors to the ideas, texts and drawings. The names, as they appear from the documents, are summarised in Answer 2 for the defenders. A number of firms of engineers, consultants and architects are named. They include THG Rail, which is said in one of the documents to be a division of Tower Hotels Group Ltd. The defenders say that it is apparent from the pursuer's own pleadings, read with the documents incorporated therein, that he does not have title.

[5] The pursuer's answer to this is a very straightforward one. He says simply that, whatever was done by others was done on his instructions. THG Rail was a name used by him as his "personal trademark", as he puts it. Whatever may seem to be the position from the documents, he acted, whether in his own name or through THG Rail or by giving instructions to others, to produce the materials in those documents. He offers, therefore, to prove that the work was all his.

[6] It seems to me that, on this point, the pursuer must be entitled to vindicate his case. The points raised by the defenders may be powerful ammunition in cross-examination of the pursuer at proof, but the pursuer offers to prove that the work was his and is entitled to have his case heard on this point. However, the matters cry out for further specification by the pursuer of his case, not so much as a matter of formal pleading (he has in my view pled a sufficiently specific and relevant case on this) but as a matter of effective case management. I have decided to dismiss the action for other reasons; but had I taken the view that his case was otherwise relevant, I would have made an order for him to provide further specification of this part of his case in terms of Chapter 55 of the Rules of Court, which contains the rules for intellectual property causes. Rule 55.3(6) entitles the court to appoint the case to a procedural hearing at any time; and, at such a procedural hearing, the court can make orders, in terms of Rule 55.3(4) and 55.3(5), for further specification and production of documents. As I say, standing the points made by the defenders and the explanation given at this hearing by the pursuer, I would, had the case gone to proof on this issue, have been minded to order the pursuer to give a very full explanation of his involvement in all the various drawing and other documents in which he alleges copyright, and to give a very full account of the involvement of the other parties and how he claims that, notwithstanding their involvement, he was the author of the relevant documents. But on that question, I would have allowed a proof before answer.

[7] A point arose during the discussion on title to sue about three assignations lodged in process at 6/72-74. Those bore to be assignations by three of the other entities mentioned in the documents, assigning their rights to the pursuer. Two of them post-dated the Summons in this case and are, therefore, prima facie not relevant since the pursuer must establish title as at the date of the Summons. The third pre-dates it. However, the pursuer's main point is that those assignations are not important because those parties who bore to assign their rights did not in fact have the rights - the pursuer had the entire rights in the various documents. As I have said, had I allowed the case to go ahead on other matters, I would have allowed a full enquiry on this issue, subject to the provision of further specification.

[8] The second point taken by the defenders goes to the relevancy of the pursuer's averments generally about infringement by the defenders of the pursuer's copyright. Mr Currie, QC, who appeared for the defenders, referred me to the Copyright, Designs and Patents Act 1988 ("the 1988 Act") and to a number of authorities. They were: University London Press Ltd v University Tutorial Press Ltd [1916] Ch 601; Donoghue v Allied Newspapers Ltd [1938] Ch 106; Francis Day Hunter Ltd v Bron [1963] Ch 587; Designers Guild Ltd v Russell Williams Textiles Ltd [2001] 1 WLR 2416; and IPC Media Ltd v Highbury Leisure Publishing Ltd [2005] FSR 20. I was also referred both by Mr Currie and by the pursuer, who presented his case for himself, to various extracts from a number of textbooks.

[9] Mr Currie submitted that a number of propositions flowed from the authorities to which he referred. They included the following (I leave out the propositions concerning title to sue):

(i) that the first step for a person claiming copyright is to identify the literary and artistic work for which he claims copyright;

(ii) copyright exists not in an idea but in the particular form of language or picture by which the information or idea is conveyed;

(iii) for there to be copyright in a literary or artistic work, the work must be original, in the sense that it must originate from the author; and

(iv) that infringement is constituted by copying the copyright work.

It followed from this last point, he submitted, that the pursuer needs in his pleadings to make relevant averments of copying; and this in turn involves averring the identity or similarity between the whole or substantial parts of the copyright work and the allegedly infringing work. It also involves averring a causal connection between the two works; in other words averring that the allegedly copying or infringing work must have come about as a result of copying the copyright work, although he accepted that that could be established by inference where the similarity between the two works was sufficiently clear.

[10] Those principles did not seem to me to be significantly in dispute; but even if they were, they are amply borne out by the authorities cited to me. I would stress though, for the purposes of this case, the importance of the second of those four propositions, namely that what is protected is not the idea itself but the expression of it.

[11] Building upon these principles, Mr Currie criticised the case put forward by the pursuer. In short, he said that although the pursuer referred to some 26 documents, he gave no specification in his pleadings of which parts of which documents were original; nor of which parts of which of those documents were copied in which documents produced by the defenders. He put forward four propositions (again, omitting his points on title to sue, which I have already addressed):

(i) he said that the pursuer claimed copyright in "the works" (which comprised 26 documents said to be literary or artistic works containing written texts and plans) but did not relevantly aver which parts of the texts and plans had been copied by the defenders;

(ii) he argued that the pursuer did not relevantly aver which documents produced by the defenders were copies of, or copies of parts of, the pursuer's works.

Putting those first two points together, he submitted that the pursuer did not relevantly identify similarities between his work and the defenders' documents. He went on to submit, third:

(iii) that, because he did not clearly identify the alleged similarities, the pursuer did not relevantly aver a causal connection between his work and any similarities in the defenders' work. It was impossible for him, therefore, to set up an inference of copying and, further and in any event, based on the pursuer's own averments it would appear that the origins of some of the things done by the defenders were from external sources such as BAA rather than from any copying of the pursuer's documents.

His fourth proposition was:

(iv) that throughout the pursuer's averments, there seemed to be a reliance upon the defenders having taken the pursuer's ideas, rather than, as there required to be, a concentration on the form in which the pursuer had sought to convey his ideas in writing or in plans.

[12] In my opinion, these points are well made. Looking at the pursuer's case as pled in the Summons, it seems to me that there is no adequate specification of the matters to which Mr Currie draws attention. This became even more apparent from listening to the pursuer, who put forward his case eloquently and forcefully at the Procedure Roll discussion, referring to a number of documents and identifying similarities or alleged similarities between them in a way which bore, I have to say, little relation to the way in which the claim had been pled.

[13] Had the matter rested there, I would have been minded to put the matter out By Order to allow the pursuer to have a further attempt at adjusting his Summons so as to give that further specification. But it seems to me that the matter does not rest there. I am satisfied that the defenders' fourth complaint, namely that the pursuer's argument failed to distinguish between the idea and the expression of that idea, is well founded and is not simply a matter of specification. As the pursuer explained his case to me, it seemed to me, more and more (although he did not, I think, accept it in these terms), that at the heart of his complaint was the feeling that the defender had taken his idea of the location of the station and of the approximate route, and had then converted this idea, albeit at a late stage, into drawings and no doubt other works. He said that there were a number of different schemes even at a late stage. The defenders were late converts, if I can put it that way (the wording is mine, not his), and the matter was then handled by the defenders in a rush, resulting in the defenders' own drawings being, in effect, copies of, or of substantial parts of, his drawings.

[14] Now the problem, so it seems to me, is this. The pursuer does not complain, and rightly does not complain in this action at least, which is for infringement of copyright, that the defenders have taken his ideas. There is no copyright in an idea. I must assume, for present purposes, that the defenders did adopt what the pursuer had been proposing for a long time, namely, a station situated at the southern side of a multi-storey car park which lay between the site of the station and the airport; and that they also did adopt approximately the route for which the pursuer had been pressing for some considerable time. I must assume, for the purpose of the argument, that they adopted his ideas or his plans in that respect. But that does not assist the pursuer in this action since, once they got that far, it seems to me inevitable that any depiction on a map of the scheme as thus adopted will, even in the absence of copying, bear considerable similarity to any drawing that the pursuer had already put into circulation.

[15] There are obvious similarities between, for example, the route, as proposed in the defenders' drawing lodged in process by the pursuer and the route put forward in the pursuer's drawing at 6/1g (though there are also clear differences which were discussed in argument). But in circumstances where, so the pursuer contends, the defenders had accepted, broadly speaking, the position of the station advocated by him and the approximate route advocated by him, the mere fact that the drawings show similar routes and similar positioning of the station is quite insufficient to give rise to any inference of copying.

[16] During the course of argument, I was shown a number of different drawings. I have mentioned 6/1g, which is part of the pursuer's productions, and I was asked to compare that with certain other documents which derived from the defenders, in particular 6/62. Certain similarities were pointed out to me. But it is quite apparent from that drawing, that although the approximate route is followed and the station is in approximately the same place as that put forward by the pursuer, there is no exact copying even of the idea. The station is not in precisely the same place. The platform is in a different position, in an east/west direction, from that in the pursuer's drawing. Nor, and this is what matters in this action for infringement of copyright, is there any exact copying in terms of the representation or the expression of the idea. Thus, although the pursuer in argument referred to the defenders having copied his idea of the canopy over the station platform, there is in the defenders' drawing in fact no depiction of any canopy over the platform. The station itself is depicted quite differently and, again, is further to the east than in the pursuer's drawing. In some places the line of the proposed track is different. I accept, as the pursuer submitted, that copying does not have to be exact to constitute infringement. But for an inference of copying to be drawn, and that is the basis of the pursuer's case here, the similarities and the circumstances in which they arise must be such as to justify the inference (or, for the purposes of a discussion on the Procedure Roll, arguably so). That is where the pursuer's case on infringement falls down. His whole argument proceeds on the basis that the defenders have taken his idea. But the idea is not protected by copyright. The fact is that once the idea of the station in that position is adopted by the defenders, and once the route is adopted by them, any representation on a map or plan of the station in that position and of route thus adopted is bound to have substantial similarities with the pursuer's documents, whether or not there has been any copying. So there is no arguable inference of infringement to be drawn from the matters put forward in the pursuer's pleading.

[17] It follows, in my opinion, that quite apart from the complaints about lack of specification, the pursuer's case is, for the reasons I have given, fundamentally irrelevant. I therefore dismiss the action.

[18] I should add this. I was also asked to exclude from probation the averments in Article 27 of the Summons on the basis that they were irrelevant and lacking in specification. I think there is force in this, but, in light of my decision that I should dismiss the action as irrelevant, I do not need to make any separate decision on that point.