High Court Ruling: "There is No Right to Prevent Non-Textual Copying"

By Briffa

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The extent to which copyright protects the functionality, the so-called ‘look and feel’, of websites has been a question debated by intellectual property lawyers for some time. While it is established law that software is protected by literary copyright, the protection available to physical effects of software is less clear.

A detailed ruling by the High Court last summer threw some light on the protection available. However, the news is not good for developers of on-line user interfaces, as the scope of protection beyond the actual code appears to be limited. As a result of the decision, online traders and software developers need to have a careful look at their contractual arrangements.

Easyjet had engaged on-line development company Navataire to develop an online ticketless booking system for their flights. When their relationship with Navataire ended, Easyjet engaged another developer to create a system which had the exact same command structure and ‘look and feel’ as the system developed by Navataire. As the new developer did not have access to the source code for the Navataire system there was no question of the new system infringing the literary copyright in it. This left Navataire with the task of arguing that the new system copied non-textual aspects of the new system.

Navataire argued that the functionality of the website amounted to a “business system”. They went on to argue that the “business system” in the website was comparable to the plot of a novel. As both novels and computer programs are treated as literary works, Navataire argued that the “plot” of a computer program should be protected. Unfortunately for Navitaire, the judge disagreed.

In cases where a plot had been copied from a novel the copyist had access to the literary work from which the plot was copied. As Easyjet did not have access to the source code, they could not copy its plot. The judge added that if source code had a “plot” then it could also be argued that filing instructions for a booking clerk had a plot. This could not be the case, as it would not allow booking clerks to do their job without infringing copyright in the instructions.

Programming - proof is in the pudding?

Instead, the judge likened the computer program to a secret recipe for a pudding. While the recipe itself could be a literary work, if someone was to eat at a restaurant which sold the pudding and, from eating it set out to make a similar pudding without access to the recipe, that would not infringe the copyright in the recipe even though a similar result was achieved.

Navataire then tried to argue that the commands themselves should be protected by copyright. The commands were machine readable words composed of various three letter structures which made a computer act in a certain way. Over 44% of the commands used in the new system replicated the commands in the original system. Navataire argued that this amounted to infringement of literary copyright in the commands.

The judge rejected this on the basis that each command was a single word, and a single standalone word does not qualify as a work protected by copyright. The judge further observed that as the commands were not read by human eyes, and did not further human learning or enjoyment, they were clearly a computer language. As EU law requires that computer languages are free to use by all programmers, the commands could not be protected by copyright.

Icon and layout copyright?

Navataire moved on to claim they owned artistic copyright in elements of the website. Navataire partially succeeded in with this claim, as it was held that the shape of the icons they used and some of the screen layouts were entitled to copyright protection. However, the protection conferred by artistic copyright in the icons and screen layouts was not enough to prevent Easyjet from using the functionality of their new system. The use of the artistic copyright in the visual aspects of the user interface did not prevent Easyjet from using a system that employed the same decision making structure as that developed by Navataire.

The decision highlights the problems in using copyright to protect the user experience provided by software systems. However, it is an aim of EU legislation on copyright and competition law that ownership of business methods should not be unduly restrictive. Consider the situation where a competitor to Easyjet engages a software developer to create a booking system similar to that used by Easyjet. By excluding such systems from copyright protection business methods are free to be used in any industry including the budget airline industry. The best approach for developers is to protect themselves through contract terms such as restrictive covenants preventing customers from creating systems with similar functionality, rather than relying on copyright.

About Briffa:

Briffa is a modern legal practice specialising in intellectual property – the protection of copyright, designs, patents, trade marks, trade secrets and information technology. Their lawyers all have excellent legal backgrounds and are experts in this field. www.briffa.com More expertise from Briffa can be found in NMK's Mind Your Own Business section and also in this article on Privacy & Online advertising.

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