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Intellectual property – confidential information Wade and others v British Sky Broadcasting Ltd [2016] EWCA Civ 1214

Published on 20 March 2017

What confidential information exists in an idea and what amounts to misuse?

The facts

The claimants both worked in the music industry and pitched their TV programme format to BSkyB in June 2009. The format was for a music talent show where singer-songwriters would perform their own material to a panel of judges. At the end of each live show, one contestant would be eliminated according to the conventional “whittle”
format. A key element was that the contestants’ songs would be made available for internet download the day after the show.

The pitch was delivered using a deck of PowerPoint slides, a copy of which BSkyB retained. BSkyB did not commission the show, but a little over a year later began broadcasting a very similar programme which ran for a series in the UK and later in other countries. BSkyB’s programme was open to all musicians, not just singer-songwriters, and not did use a whittle format. It did, however, enable same-day downloading of contestants’ televised performances.

The claimants brought a claim against BSkyB for misuse of confidential information – the information being the television programme format idea which was presented at the original pitch.

The decision

BSkyB were found not to have misused the claimants’ confidential information.

Although there was considerable duplication between the individual elements of BSkyB’s programme and the claimants’ original format, sufficient differences existed that it did not look like a complete trace of the original idea. BSkyB was able to rely on evidence that showed how each of the duplicated elements had come to be included in their programme, and they were also able to explain how the programme had come to be developed in such a short time after they had heard the claimants’ pitch.

The claimants appealed this decision, arguing that the judge had approached the issue incorrectly by considering the elements of each programme format individually before forming a view of “their effect in combination”. It was the big picture that made BSkyB’s programme appear as a duplication of the claimants’ format, and that should have been the primary form of assessment. However, this approach was rejected by the Court of Appeal who confirmed that the judge had been entitled to approach his assessment in the way that he did.

Why is this important?

This decision shows how the protection afforded to confidential information can differ depending upon the nature of that information. Where the information is an idea, it can be difficult to prove that someone else can’t possibly have also had that idea independently.

Any practical tips?

Always keep a clear record of creation, including details of the processes used to develop a new product or software and how the ideas embodied in the product or software have come about.