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3 February 2017

Sky Successfully Defends Itself Against Allegations of Copying

In the recent case the Court of Appeal ruled ruling that Sky Broadcasting had not misused confidential information relating to the format of a television talent show.

The claimants pitched a television talent show to Sky called ‘The Real Deal’, which Sky rejected. The pitch consisted of a series of slides containing broad ideas about the show. When Sky released a talent show later the same year named ‘Must Be The Music’, and the Claimants argued that ‘Must be the Music’ directly copied elements from the pitch.

It is worth noting that the claimants based their assertions of copying on the timing of creation of ‘Must Be The Music’ alongside the similarities. Sky argued that they had independently come up with the idea of ‘Must Be The Music’ and set out in detail their version of events leading to their creation of the show.

Ideas can be protected under the tort of “misuse of confidential information”, however, in order to attract protection, ideas must be properly formed. The case of Coco v. A N Clark (Engineers) Limited [1969] RPC 14 gives three elements for a case such as this to succeed:

  •  The information must “have the necessary quality of confidence about it”
  •  The information must have been given in circumstances implying an obligation of confidence
  •  The information must have been misused to the detriment of the claimant.

Flowing from this, if a Defendant can show that they had had independently arrived at something similar to what the Claimant has proposed, then the Defendant will not have misused the Claimant’s confidential information.

The question for the court in this case was whether the information contained with the slides presented at the pitch had the necessary quality of confidence, and whether Sky had, in fact, misused that confidential information, or whether it had, in fact, arrived at the idea for “Must Be The Music” independently.

At first instance, the High Court accepted that Sky would have been aware that the information presented at the pitch was confidential. Whilst the Court noted that there were eight points of similarity between ‘The Real Deal’ and ‘Must Be The Music’, it found that some elements of ‘The Real Deal’ found within the slides were not confidential because, for instance, they had been used in previous shows before, but other elements did have the necessary quality of confidence.

The Court went on to consider whether those elements which did have the necessary quality of confidence had been “copied” into “Must be the Music”. Although the Court did find the similarities suspicious, it went on to find that Sky had sufficiently explained those similarities.

The Claimants appealed the High Court’s decision for the following reasons:

  • The Judge should have looked at the common factors between the two shows as a whole, rather than looking at the individual elements. The claimants argued that had the judge approached the issue from this angle, the inference of copying would have been “overwhelming”.
  • The judge had wrongly required the claimants to provide “strong evidence” to contradict Sky’s assertion that Sky had independently created ‘Must Be The Music’.

The Court of Appeal, rejecting the Claimant’s appeal, noted that the legal burden rested on the Claimant, but might shift to the Defendant if the similarities between the information and the production appeared suspicious. It would then be for the Defendant to produce evidence showing independent derivation.

In this case, Sky had demonstrated independent creation. The Court of Appeal found that the High Court’s reference to “strong evidence” demonstrated only that Sky’s  positive case of independent creation was proved beyond the standard (“on the balance of probabilities”) Sky was required to meet.

The Court of Appeal also held that the High Court had been correct in examining each of the allegedly confidential aspects of the show separately before considering the combined effect. Given the finding that “Must be the Music” had been created independently, the Court of Appeal decided that it was not necessary to go further and consider whether the combination of features in the slides, taken as a whole, had the necessary quality of confidence given that certain elements did not.

Aside from showing how difficult it is to overturn a court’s finding of fact (rather than a point of law), this interesting case highlights the difficulties which can arise when there are two similar ideas at play.  Those who have their business in the creation of ideas are therefore well advised to keep clear records of their thoughts, how they arose, and the identity of any individuals with whom their ideas are shared.

If you want to know more about the impact this could have on your business or have any copyright or confidentiality issues you wish to discuss, get in touch.

This article is for general guidance only. It is not to be relied upon and professional advice should always be taken on specific circumstances.