COPYRIGHT
Computer Software, Music Publishing, Trade Mark

by Tom Frederikse
A software designer has failed in his attempt to protect certain aspects of his computer program when the High Court ruled that there is no copyright in the user interface (the visual front-end) of an application. In a complex 111-page judgment of 30 July 2004 (only published in December so that the confidential information could be censored), Navataire, the software designer, lost on most claims but won some others.

Navataire had supplied a software system for tickletless airline booking to easyJet, but easyJet subsequently hired their own software developer, Bulletproof Technologies Inc, to deliberately design a new system with the same “look” as, and to achieve the same results as, Navataire’s program. While admitting that none of the underlying software in the new system copied the old one and that Bulletproof had no access to the source code and did not “decompile” the old system, Navataire nevertheless claimed that their copyright was infringed by something called “non-textual copying” of the work as a whole, or of the various “modules” of the system.

Put more simply, it was alleged that easyJet had copied the plot of the story without taking the words by stealing the “look and feel” and many of the basic commands of the program. Alternatively, this way of setting out the computer screen and keying in simple commands, such as “A” for availability and “N” to name a passenger, was said to be a “business method” in which copyright subsisted. In technical terms, it was alleged that easyJet had copied the Graphical User Interface (“GUI”) and the command line interfaces and codes of the application. The most commonly argued copyright issue, whether the copying was “substantial”, was applied only to the copying of the source code, though Navataire admitted that little or no source code was copied. It was also admitted by easyJet, however, that about 44% of the original command set had been reproduced and the visual interface and basic functionality seem to have been nearly identical.

The court found that the command names were not protectable as copyright “literary” works because, like the word “Exxon” in a 1982 case, the individual words reflected insufficient “skill and labour” and were merely labels for the underlying work. The set of commands was also not protectable as a “compilation” because they amounted to a “computer language” which must be kept free for use by all programmers, though the works expressed in that language may be protected. Furthermore, a “business method” was in itself not protectable by copyright. The screen layouts (“GUI screens”) and the icons for the program were protectable, but as artistic works. The court said that both plainly exhibited sufficient skill and labour to be considered as copyright works.

Thus, while the court did not explicitly say that there is no such thing as “non-textual” copying, it came close: “Take the example of a chef who invents a new pudding – using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary effort, he succeeds in emulating the earlier result and records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same?” Mr. Justice Pumfrey said the answer is no. There is no copyright in the pudding itself.

The full text of the judgment can be accessed via:http://www.bailii.org/ew/cases/EWHC/Ch/2004/1725.html

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