Copyright - Pasternak v Prescott
Business and Property Courts, Intellectual Property List (Mr Justice Edward Johnson) Pasternak v Prescott [2022] EWHC 2695 (Ch)
This was a claim for copyright infringement and a counterclaim for a declaration of non-infringement. The claimant was Anna Pasternak. author of Lara: The Untold Story That Inspired Doctor Zhivago ("Lara") She complained that the defendant, Lara Prescott, had reproduced part of the selection, structure and arrangement of facts and incidents from 7 out of 12 chapters of her book in The Secrets We Kept ("TSWK"). Ms Paasternak also alleged that Ms Prescott had reproduced a substantial part of a translation of part of Légendes de la Rue Potapov in which Ms Pasternak had acquired copyright without Ms Pasternak's consent. The action and counterclaim came on for trial before Mr Justice Edwin Johnson between 8 and 19 July 2022. The learned judge delivered judgment on 25 Oct 2022 (see Pasternak v Prescott [2022] EWHC 2695 (Ch) (25 Oct 2022)). At para [490] of his judgment, his lordship dismissed the claim for infringing the copyright Lara but upheld the claim for infringing copyright in the translation of part of Légendes.
The Claims
The judge referred to the allegation of copying of the selection of events in Lara as "the Selection Claim" and the allegation of infringement of copyright in the translation of part of Légendes as "the Translation Claim" (see para [119]).
The Selection Claim
His lordship directed himself at [133] that the questions that he had to answer in order to determine the Selection Claim were as follows:
"(1) What is the material which is said by the Claimant to have been copied from Lara? ..............
(2) Is each selection of events the expression of the Claimant's own intellectual creation (AOIC), so as to have the benefit of copyright protection?
(3) Has Defendant copied the selection of events (in whole or in part) set out in all or any of the sections of Annex 2?"
The material in "Annex 2"
The judge answered the first questions as follows in sub-paragraph (1):
"In the present case this first question is answered by Annex 2. The relevant material is the selection of events set out in each section of Annex 2."
"In the present case this first question is answered by Annex 2. The relevant material is the selection of events set out in each section of Annex 2."
"Annex 2" refers to Annex 2 of the claimant's written closing submissions. It contained what His Lordship called at [122] "the final particulars of the infringements of copyright which constitute the Selection Claim."
The defendant answered those particulars in a Scott schedule. Those particulars were the following events in the claimant's book which were said to have been copied by the defendant:
- Chapter 5: "Marguerite in the Dungeon";
- Chapter 6: "Cranes over Potma";
- Chapter 6: "The Bench Scene";
- Chapter 7: "A Fairy Tale";
- Chapter 8: "The Italian Angel";
- Chapters 9 and 10: "The Fat is in the Fire" "The Pasternak Affair"; and
- Chapter 12: "The Truth of their Agony".
In his analysis of those materials, the judge referred to "Boris" and "Olga", Boris was the author Boris Pasternak and "Olga" was Olga Ivinskaya, Pasternak's friend and lover.
The Second Question: Whether each Selection of Events is the Expression of the Claimant's AOIC
Mr Justice Edwin Johnson asked in relation to each of the events in Annex 2 whether it had the benefit of copyright protection because s,16 (3) (a) of the Copyright, Designs and Patents Act 1988 provides that copyright in a work can be infringed by doing a restricted act in relation to the work as a whole or any substantial part of it. That begged the question of what is meant by "a substantial part" of a work. The judge answered that question by reference to para [38] of Lord Justice Lewison's judgment in SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482 [2014] RPC 8:
"Our domestic legislation confines the doing of a restricted act (e.g. copying) to doing that act in relation to the work as a whole or any 'substantial part of it': Copyright Designs and Patents Act 1988 s.16 (1), s.16 (3), Nova Productions Lid v Mazooma Games Lid [2007] EWCA Civ 219, [2007] R.P.C. 25 at [29]. It has long been the position in domestic law that what is substantial is a question to be answered qualitatively rather than quantitatively. In Infopaq the court said that parts of a work are entitled to the same protection as the work as a whole. But the parts in question must 'contain elements which are the expression of the intellectual creation of the author of the work': [39]. This is now the test for determining whether a restricted act has been done in relation to a substantial part of a work. Both counsel agreed that to interpret s.16 (3) in this way was consistent with the court's duty to interpret domestic legislation, so far as possible, so as to conform with European directives. I do not think that anything in the decisions of this court in Nova Productions Lid v Mazooma Games Lid and The Newspaper Licensing Agency v Meltwater Holding BV [2011] EWCA Civ 890, [2012] R.P.C. I casts doubt on that proposition."
He also mentioned para [21] of Mr Justice Zacaroli's judgment in Sheeran v Chokri [2022] F.S.R. 15:
"To amount to an infringement, however, the copying must be of either the original work or a "substantial part" of it: s. 16(3)(a) of CDPA. This is a qualitative, not quantitative, question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work: Newspaper Licensing Agency Ltd v Meltwater Holding BV[2011] EWCA Civ 890, at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16; [2010] FSR 20. The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant's copyright work (or a substantial part of it): Mitchell v BBC[2011] EWPCC 42, per HHJ Birss QC at [28]-[29]."
"To amount to an infringement, however, the copying must be of either the original work or a "substantial part" of it: s. 16(3)(a) of CDPA. This is a qualitative, not quantitative, question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work: Newspaper Licensing Agency Ltd v Meltwater Holding BV[2011] EWCA Civ 890, at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16; [2010] FSR 20. The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant's copyright work (or a substantial part of it): Mitchell v BBC[2011] EWPCC 42, per HHJ Birss QC at [28]-[29]."
Chapter 5: "Marguerite in the Dungeon"
The judge observed at [173]:
(1) Olga discovering her pregnancy and the conditions of her confinement in the Lubyanka being eased.
(2) Olga being told during interrogation that she is being taken to see Boris; then being taken in a van to another government building, to a morgue.
(3) Olga being taken back to her interrogator, where Irina's English teacher is brought in to confess.
(4) The teacher later writes to Olga to apologise.
(5) Olga suffers a miscarriage, brought on by her experience in the morgue.
(6) Irina's reflections on the miscarriage.
(7) Olga sentenced and reference to Potma."
In the subsequent paragraphs, he considered those allegations and the supporting evidence. He concluded at [229]:
"In summary, and drawing together all of the discussion in this section of this judgment, my overall conclusions in relation to chapter 5 of Lara are as follows:
(1) The selection of the specified Events in chapter 5 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 1 of TSWK or elsewhere in TSWK copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 5 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 5 of Lara, the claim of infringement of copyright in Lara fails."
However, he added at sub-para (5):
"In summary, and drawing together all of the discussion in this section of this judgment, my overall conclusions in relation to chapter 5 of Lara are as follows:
(1) The selection of the specified Events in chapter 5 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 1 of TSWK or elsewhere in TSWK copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 5 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 5 of Lara, the claim of infringement of copyright in Lara fails."
However, he added at sub-para (5):
"It should be kept in mind, in this context, that I have yet to consider whether the Defendant's use of the wording of the Accusation Act in chapter 5 of Lara amounts to an infringement of copyright in the Legendes Translation. More simply, I have yet to consider the Translation Claim."
Chapter 6: "Cranes over Potma"
The judge noted at [230] that the claimant relied on the following events from chapter 6:
"(1) Olga transferred to transit camp.
(2) Boris supporting Olga's family.
(3) Olga transferred onward to Potma.
(4) Gruelling life at camp; being tormented by Buinaya.
(5) Presence and treatment of nuns.
(6) Summers worst; description; worrying about Boris, memorising Boris' poems; and composing her own poems.
(7) An attempt by Olga to rebel.
(8) Olga taken to see Godfather; receiving letter, notebook and poems from Boris.
(9) Postcards from Boris.
(10) Boris writing Doctor Zhivago (including poems) (inspired by Olga's plight); anguish; two heart attacks; nursed by Zinaida.
(11) Stalin's death; news of amnesty.
(12) Boris meeting with Irina on a bench before Olga's release.
(13) Olga worrying about appearance; recalling Boris' concerns about sister ageing.
(14) Boris driven back into Olga's arms."
"(1) Olga transferred to transit camp.
(2) Boris supporting Olga's family.
(3) Olga transferred onward to Potma.
(4) Gruelling life at camp; being tormented by Buinaya.
(5) Presence and treatment of nuns.
(6) Summers worst; description; worrying about Boris, memorising Boris' poems; and composing her own poems.
(7) An attempt by Olga to rebel.
(8) Olga taken to see Godfather; receiving letter, notebook and poems from Boris.
(9) Postcards from Boris.
(10) Boris writing Doctor Zhivago (including poems) (inspired by Olga's plight); anguish; two heart attacks; nursed by Zinaida.
(11) Stalin's death; news of amnesty.
(12) Boris meeting with Irina on a bench before Olga's release.
(13) Olga worrying about appearance; recalling Boris' concerns about sister ageing.
(14) Boris driven back into Olga's arms."
He addressed each of those incidents between [231] and [257] considering separately the bench scene. He decided at [258]:
"(1) The selection of the specified Events in chapter 6 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapters 5 or 6 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 6 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 6 of Lara, the claim of infringement of copyright in Lara fails."
"(1) The selection of the specified Events in chapter 6 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapters 5 or 6 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 6 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 6 of Lara, the claim of infringement of copyright in Lara fails."
Chapter 6: "The Bench Scene"
Para [259] of the judgment noted that the claimant relied on the following:
"(1) The meeting takes place on a bench.
(2) At the time Boris was unable to climb the stairs to Olga's apartment.
(3) Irina had a sense of family connection with Boris.
(4) Boris had lost weight and had his teeth done.
(5) Boris wanted Irina to make Olga see a 'new reality.'
(6) Olga could only count on Boris' 'friendship,'.
(7) Irina's reaction was that they would have to deal with it themselves."
His lordship considered those matters between [260] and [277]:
"(1) The meeting takes place on a bench.
(2) At the time Boris was unable to climb the stairs to Olga's apartment.
(3) Irina had a sense of family connection with Boris.
(4) Boris had lost weight and had his teeth done.
(5) Boris wanted Irina to make Olga see a 'new reality.'
(6) Olga could only count on Boris' 'friendship,'.
(7) Irina's reaction was that they would have to deal with it themselves."
His lordship considered those matters between [260] and [277]:
He said at [278]:
"(1) The selection of the Events in the Bench Scene, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara.
(2) I find that the Defendant has not, either in chapter 6 of TSWK or elsewhere in TSWK, copied this selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to the Bench Scene, infringed the copyright in Lara.
(4) Accordingly, and in relation to the Bench Scene, the claim of infringement of copyright in Lara fails."
Chapter 7: "A Fairy Tale"
The judge mentioned in para [279] that the claimant relied on the following events which were said to have been copied in Chapter 11 of the defendant's book:
"(1) Boris and Olga reunite; Boris is weaker; they rekindle their relationship.
(2) Report from Collins Harvill on Olga's return from the gulag.
(3) Olga inspiring Boris; Boris being inseparable from Olga; huge progress with Doctor Zhivago (inspired by Olga).
(4) Olga and Boris only separated when Boris works at Peredelkino; description of improvements to Peredelkino.
(5) Olga frustrated that Boris refusing to leave Zinaida.
(6) Olga pregnant again.
(7) Olga spending time at Peredelkino whilst Zinaida away; Boris reading Doctor Zhivago to others; Boris reciting poetry to depleted audiences.
(8) Stillbirth; Olga renting dacha on the other side of Moscow.
(9) Olga rents dacha on shore of Izmalkovo.
(10) Olga staying when children return to Moscow after summer; moving to the Little House; further progress with Doctor Zhivago; Olga proof reading; Sunday visitors from Moscow.
(11) Olga running Boris' literary business.
(12) Recollections of Irina and Olga of their time at Little House.
(13) Difference between the Little House and the Big House; different domains; BP mainly writing at Peredelkino but visiting Olga regularly; living dual lives.
(14) Every conversation leading back to Doctor Zhivago; book finished and bound.
(15) Olga trying to find publisher, Boris reading to Fedin who is rapt.
(16) Irina referring to Doctor Zhivago leading them down a spiral."
"(1) Boris and Olga reunite; Boris is weaker; they rekindle their relationship.
(2) Report from Collins Harvill on Olga's return from the gulag.
(3) Olga inspiring Boris; Boris being inseparable from Olga; huge progress with Doctor Zhivago (inspired by Olga).
(4) Olga and Boris only separated when Boris works at Peredelkino; description of improvements to Peredelkino.
(5) Olga frustrated that Boris refusing to leave Zinaida.
(6) Olga pregnant again.
(7) Olga spending time at Peredelkino whilst Zinaida away; Boris reading Doctor Zhivago to others; Boris reciting poetry to depleted audiences.
(8) Stillbirth; Olga renting dacha on the other side of Moscow.
(9) Olga rents dacha on shore of Izmalkovo.
(10) Olga staying when children return to Moscow after summer; moving to the Little House; further progress with Doctor Zhivago; Olga proof reading; Sunday visitors from Moscow.
(11) Olga running Boris' literary business.
(12) Recollections of Irina and Olga of their time at Little House.
(13) Difference between the Little House and the Big House; different domains; BP mainly writing at Peredelkino but visiting Olga regularly; living dual lives.
(14) Every conversation leading back to Doctor Zhivago; book finished and bound.
(15) Olga trying to find publisher, Boris reading to Fedin who is rapt.
(16) Irina referring to Doctor Zhivago leading them down a spiral."
He considered those issues between para [280] and [318]. His conclusions are in para [319]:
"(1) The selection of the Events in chapter 7 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 7 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 7 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 7 of Lara, the claim of infringement of copyright in Lara fails."
"(1) The selection of the Events in chapter 7 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 7 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 7 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 7 of Lara, the claim of infringement of copyright in Lara fails."
Chapter 8: "The Italian Angel"
The claimant alleged that the defendant had copied the selection of the following events (para [320] of the judgment):
"(1) Olga returns from Moscow; argues with Boris.
(2) Olga and Zinaida united.
(3) Details of other copies of Doctor Zhivago smuggled out.
(4) Olga pleading with Bannikov in Moscow; Writers' Union disquiet.
(5) Olga visiting D'Angelo; pleading for publication to be delayed; Boris signing contract with Feltrinelli.
(6) Olga back in Moscow trying to publish; visiting Polikarpov; possibility of edited version being published but Boris not interested.
(7) Olga negotiating with Feltrinelli; Boris giving copies to further visitors (including Isaiah Berlin); Boris writing to family about Berlin.
(8) D'Angelo meeting at Radio Moscow and with Boris.
(9) Attack on novel in Novy Mir; Goslitizdat asking Feltrinelli to delay publication; Boris signing contract with Goslitizdat.
(10) Boris ill and writing to Olga from hospital.
(11) Boris summonsed to Writers' Union; sending Olga with a note instead.
(12) Olga taking note from Boris to Polikarpov; Polikarpov drafting telegram for Boris to send; Boris eventually sending in Russian knowing Feltrinelli will ignore.
(13) Boris writing to his sister, Lydia, in English; referring to Olga being Lara; and to Feltrinelli to thank him."
His lordship considered those allegations between [321] and [343] and concluded at [344]:
"(1) The selection of the Events in chapter 8 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 11 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 8 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 8 of Lara, the claim of infringement of copyright in Lara fails."
Chapters 9 and 10: "The Fat is in the Fire" and "The Pasternak Affair"
Mr Justice Edwin Johnson noted at [345] that the Claimant had contended as follows:
"(1) Rumours that BP will win Nobel Prize followed by receipt; BP sending telegram to accept.
(2) Kremlin calls emergency meeting of Writers' Union; Radio Moscow denounces BP; "spontaneous" protests; students' letter; placards; "Judas".
(3) Newspapers publish attack on BP and Doctor Zhivago; Irina glad BP does not read newspapers; BP advising Irina's friends to denounce him.
(4) Writers' Union meets; BP does not attend but sends letter; meeting lasts hours but expulsion unanimous.
(5) KGB tightening grip; BP talking to microphone; Olga decides to burn papers; BP suggests suicide; Mitia sent to collect wood chips; Olga talks BP out of suicide.
(6) Olga asking Fedin what he wants; Fedin arranging meeting with Polikarpov; Olga arguing with BP; BP announcing he has sent telegrams to Sweden and Moscow rejecting Nobel Prize."
"(1) Rumours that BP will win Nobel Prize followed by receipt; BP sending telegram to accept.
(2) Kremlin calls emergency meeting of Writers' Union; Radio Moscow denounces BP; "spontaneous" protests; students' letter; placards; "Judas".
(3) Newspapers publish attack on BP and Doctor Zhivago; Irina glad BP does not read newspapers; BP advising Irina's friends to denounce him.
(4) Writers' Union meets; BP does not attend but sends letter; meeting lasts hours but expulsion unanimous.
(5) KGB tightening grip; BP talking to microphone; Olga decides to burn papers; BP suggests suicide; Mitia sent to collect wood chips; Olga talks BP out of suicide.
(6) Olga asking Fedin what he wants; Fedin arranging meeting with Polikarpov; Olga arguing with BP; BP announcing he has sent telegrams to Sweden and Moscow rejecting Nobel Prize."
He considered the claimant's contentions between [346] and [370]. He held at [371]:
"(1) The selection of the Events in chapters 9 and 10 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara.
(2) I find that the Defendant has not, either in chapter 24 of TSWK or elsewhere in TSWK, copied this selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapters 9 and 10 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapters 9 and 10 of Lara, the claim of infringement of copyright in Lara fails."
"(1) The selection of the Events in chapters 9 and 10 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara.
(2) I find that the Defendant has not, either in chapter 24 of TSWK or elsewhere in TSWK, copied this selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapters 9 and 10 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapters 9 and 10 of Lara, the claim of infringement of copyright in Lara fails."
Chapter 12: "The Truth of their Agony"
The last allegations in the Selection Claim were as follows:
"(1) Celebrating Boris' 70th birthday at the Little House.
(2) Boris not well; pain in chest; trouble with leg.
(3) Olga accident; cash from Feltrinelli.
(4) Irina's and Olga's last meetings with Boris.
(5) Boris turn for the worse; angina suspected; handing over Blind Beauty to Olga.
(6) Irina's last conversation with Boris.
(7) Boris diagnosed with angina; Olga excluded from the Big House; Olga keeping vigil; nurse providing updates.
(8) Foreign reporters arrive.
(9) Olga not allowed to visit because of Boris' vanity (false teeth removed); Boris diagnosed with cancer; Boris asks sons to look after Olga; Boris dies.
(10) Details surrounding death; Olga supported by family; international press coverage; limited Russian press coverage.
(11) Funeral of Boris.
(12) KGB come for Blind Beauty.
(13) Olga arrested again.
(14) Olga accused of writing Doctor Zhivago herself; tried by peoples' court; sent, with Irina, to various camps.
(15) Ends with ending from Doctor Zhivago."
The learned judge considered those allegations between [373] and ]402] and found at [403]:
"(1) The selection of the Events in chapter 12 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 28 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 12 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 12 of Lara, the claim of infringement of copyright in Lara fails."
"(1) The selection of the Events in chapter 12 of Lara, as set out in Annex 2, is protected by copyright as a substantial part of the literary work that is Lara. The same is true of the selection of these Events which is alleged to have been copied.
(2) I find that the Defendant has not, either in chapter 28 of TSWK or elsewhere in TSWK, copied the relevant selection of these Events or any part of this selection.
(3) I conclude that the Defendant has not, in relation to chapter 12 of Lara, infringed the copyright in Lara.
(4) Accordingly, and in relation to chapter 12 of Lara, the claim of infringement of copyright in Lara fails."
Defendant's Sources
Although the judge's findings on each set of allegations in Annex 2 were enough to dispose of the Selection Claim, he added some observations on the defendant's sources at para [405]. He referred to them as "ACOT" and "TZA". ACOT was short for "A Captive of Time" by Olga Ivinskaya and "TZA" was short for Peter Finn and Petra Couvée's The Zhivago Affair: The Kremlin, the CIA and the Battle Over a Forbidden Book. His remarks were as follows:
(2) I am also satisfied that the Defendant used Lara only as a secondary source, and I so find. I accept the Defendant's evidence in this respect. This is, again, obvious when one goes through the detail of the allegations of copying. I should however highlight the point, which I have made a number of times in the discussion of the Selection Claim above, that the Defendant's evidence that she used Lara as a secondary source is entirely consistent with the way one finds, in TSWK, the odd detail which has been taken from Lara.
(3) I am also satisfied, and I find that the Defendant did find Lara a disappointment, when she read the work in late 2016. I am also satisfied, and I find that the reason for that disappointment was because she did not consider the work to contain anything new. I accept the Defendant's evidence in this respect. Given the extent to which the Claimant drew on ACOT and TZA in writing Lara, and given that the Defendant was using ACOT and TZA as her primary sources, I would have expected the Defendant to have experienced some disappointment when first reading Lara. In terms of source material, I would have expected the Defendant to have concluded that Lara did not contain anything new. This was not of course what the Defendant said to the Claimant, either at the drinks party in March 2019 or in the subsequent email exchange. I have however already explained how neither the Claimant nor the Defendant expressed their true feelings in those exchanges."
Differences between Lara and TSWK
The trial judge observed at [408] that Lara and TSWK are fundamentally different works. Lara is a non-fictional historical work. TSWK is a work of historical fiction. As they were dealing with the same historical subject matter it was not surprising that the works referred to the same events in roughly the same order. His lordship noted at the end of the paragraph is the fundamental difference between the two works is apparent on a first reading. He added at [410] that differences in style, content and arrangement which he identified are however equally apparent if one concentrates on the chapters of each work which are the subject of the Selection Claim.
Surprisingly, Ms Pasternak never read TSWK. She said in para [73] that she dipped into the book and came across a passage where Boris and Olga go to bed together and are described as coming together "like crashing boulders that echoed across Moscow". The claimant said that she was appalled by this writing, and decided never to read what she considered "to be a trashy book that Boris and Olga would have hated." It struck the judge as extraordinary that an author could bring a copyright claim, claiming infringement of the copyright in their own book, without actually having read the book which is alleged to infringe their copyright.
The Translation Claim
In 2014 Ms Pasternak commissioned the translation of pages of Légendes de la Rue Potapov that referred to Boris and Olga into English. A short passage from the translation that the judge called "The Accusation Act" sets out certain accusations against Olga for which she was sent to the labour camp at Potma. The claimant quoted that passage in Lara.
The judge decided that copyright can subsist in a translation as a work that originates but is separate from the work in the original language, In reaching that conclusion, his lordship referred to para 3-205 of the 18th edition of Copinger:
"It is often said that changing the expression of a work from one medium or form to another will entitle the new work to copyright. As a generalisation, this is true but it is no more than another way of saying that skill and labour expended on the creation of a work confer originality. The work of a reporter in faithfully reporting a speech delivered orally is an example of the expenditure of skill and labour in connection with a change of medium which has been held to entitle a work to protection. An example of a change of form is the work of a translator, which has long been entitled to protection."
"It is often said that changing the expression of a work from one medium or form to another will entitle the new work to copyright. As a generalisation, this is true but it is no more than another way of saying that skill and labour expended on the creation of a work confer originality. The work of a reporter in faithfully reporting a speech delivered orally is an example of the expenditure of skill and labour in connection with a change of medium which has been held to entitle a work to protection. An example of a change of form is the work of a translator, which has long been entitled to protection."
He added that art 2 (3) of the Berne Convention requires translations to be protected by copyright in their own right. He held at [427] that copyright subsisted in the translation of certain pages of Légendes
Although the Accusation Act consisted of very few words, the judge held that it constituted a substantial part of the translation. He said at para [434]:
"Applying, in particular, what was said by the Court of Appeal in Martin v Kogan as to the required threshold for establishing AOIC, it seems to me that the exercise of translating the wording of the Accusation Act from French to English can be said to have involved a sufficient degree of intellectual creation to qualify for copyright protection. Putting the matter another way, and applying what was said by Lewison LJ in SAS Institute at [31], it seems to me that the choices which Ms Hervey had to make, in carrying out her work of translation of the Accusation Act, were not so limited as to disqualify the translation from constituting the intellectual creation of the author."
"Applying, in particular, what was said by the Court of Appeal in Martin v Kogan as to the required threshold for establishing AOIC, it seems to me that the exercise of translating the wording of the Accusation Act from French to English can be said to have involved a sufficient degree of intellectual creation to qualify for copyright protection. Putting the matter another way, and applying what was said by Lewison LJ in SAS Institute at [31], it seems to me that the choices which Ms Hervey had to make, in carrying out her work of translation of the Accusation Act, were not so limited as to disqualify the translation from constituting the intellectual creation of the author."
Immediately before Ms Pasternak brought this action, the translator assigned such copyright (if any) that subsisted in the translation to her.
The defendant freely admitted copying the Accusation Act from Lara. His lordship held that she had infringed the claimant's copyright in a substantial part of the translation of Légendes and that the fair dealing exception in s.30 (1ZA) of the Copyright, Designs and Patents Act 1988 was not available to her.
Costs
It appears from a "legal update" dated 2 Dec 2022 on Ms Prescott's website that Ms Pasternak has been ordered to pay nearly all of the defendant's costs. A 1% discount appears to have been allowed for the success of the Translation Claim.
Comment
This is a very lengthy judgment but a useful one on what constitutes a substantial part of a copyright work. The issue came up in both the Selection and Translation Claims. Anyone wishing to discuss this article should call me on 020 7404n 5252 during office hours or send me a message through my contact page,
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