Audio Transcription of Interview on Classic FM on 22 May 2006; The Da Vinci Code

TONY BLEWITT:

Once again we are talking about intellectual property with Spoor & Fisher and in the studio with me, Dr Owen Dean

TONY BLEWITT:

Once again we are talking about intellectual property with Spoor & Fisher and in the studio with me, Dr Owen Dean, a partner at the company. This morning Owen, we are talking about the Da Vinci Code. Now the film version of the Da Vinci Code has just been released, preceded by a very high profile copyright infringement case in London who has alleged that a book plagiarised an earlier book called Holy Blood, Holy Grail. Now do you think the timing was coincidental or was it intentional?

OWEN DEAN:

Well it is difficult to say. You know litigation takes a long time to build up and to get into court, but if it wasn’t intentional it was certainly fortuitous because if the claimants of copyright infringement, the authors of the book Holy Blood, Holy Grail, had been successful, they would have been in an extremely strong position to hold the film company to ransom because they would have got a finding by the UK court that the book the Da Vinci Code infringed their copyright, and that would have meant that the film also would have infringed their copyright. So they would have been in a position to stymie the launch of the film. You can imagine …

TONY BLEWITT:

Or take a share of it going forward.

OWEN DEAN:

Correct, well that’s what their tactic probably would have been: to say, we are going to stop you from launching this film unless you are prepared to pay us a certain amount of money. So, one can imagine that their bargaining position in that situation would have been enormous. So as it happened it did not come to fruition because the court, not surprisingly in my view, found that there was no copyright infringement. But this case illustrates an important point of copyright law, and that is that if you copy something which is itself an infringement of somebody’s work, you indirectly copy and therefore indirectly infringe the other person’s copyright. So the film company could have found itself in an extremely difficult position.

TONY BLEWITT:

I am sure they did their homework.

OWEN DEAN:

Well, they would have probably got an indemnity from Dan Brown and Dan Brown probably believed that he wasn’t infringing anybody’s copyright, but if at the end of the day Dan Brown was wrong and the court held copyright infringement, the only comfort the film company would have had would have been to sue him on their indemnity. But that would have been a very cold comfort.

TONY BLEWITT:

Yes, absolutely. In what way was it alleged that the Da Vinci Code infringed upon the copyright of Holy Blood, Holy Grail? In what way?

OWEN DEAN:

Well, the book Holy Blood, Holy Grail was published in about the middle 1980s and it developed this theory that Jesus married Mary Magdalene and she came to France bearing his child and then gave birth to the child in France, and then a whole sequence of events followed from that. Now the authors of Holy Blood, Holy Grail presented that as factual. Dan Brown’s novel the Da Vinci Code made use of that, lets call it factual sequence of events, as part of the plot, and it was claimed by the authors of Holy Blood, Holy Grail that in so doing they had infringed their copyright. Now this raises a very interesting point of copyright law because copyright does not protect ideas or information, it protects the material expression of ideas or the material expression of information. The claimants realised this and they pitched their case on a slightly different basis. They said what was copied was the central theme of their book. The court analysed all of this and came to the conclusion that it was a little bit of reverse engineering because what the claimants had done was, they had read the book and then worked backwards to find elements of the book in what they had written and then they developed that as a so called central theme. The court found that there was no such central theme, and even if there was, it wasn’t of sufficient substance to qualify for copyright as a material expression of ideas.

TONY BLEWITT:

Would a South African court have reached the same conclusion? Have there been any pertinent South African cases?

OWEN DEAN:

I believe a South African court would have reached the same conclusion. There have not been any cases which have been directly in point but there have been cases which have had similar sorts of themes. I mention the example, for instance, of a case called Erasmus vs Gallagher, which had to do with a book written by Colonel Ron Reid Daly about the bush war, the adventures of the Selous Scouts in the then Rhodesia. And what he did was he wrote a book, he sold it to a publisher, he then went back and did another book which was termed a coffee table version of the same story. The original publisher sued his second publisher for copyright infringement on the basis that the second book had borrowed material from the first book. And the answer was: Well, I was just recounting the same story and there is no copyright in ideas or that sort of thing. The court analysed the two books and came to the conclusion that he had gone further - he hadn’t, in writing the second book, simply copied the ideas, he had also copied the actual material expression, the way in which the dialogue was set out and that sort of thing, and therefore found copyright infringement. So in some ways it succeeded where the Da Vinci Code didn’t succeed.

TONY BLEWITT:

OK. Alright, thank you very much indeed. We will be talking again next week. Thanks for being here.

OWEN DEAN:

Pleasure.

Dr. Owen Dean

SPOOR & FISHER

Date published: 2005/05/22
Author: Dr Owen Dean

Tags: audio transcription classic fm the da vinci code