14 December 2005
Key Points:
Copyright infringement requires the copying of a substantial part of the work allegedly infringed. In every case, this is a matter of fact and degree. In the case of "non-literal" infringements, a decision must be made as to whether what has happened is the same as taking the plot and characters of a play or book, and played them out in the same order, or whether it is more like taking the recipe of a chef for a pudding and making the pudding.
The issue of "non-literal" copyright infringement of computer programs, where the "look and feel" or "structure, sequence and organization" of the copied software is taken, but not any part of the source code of the program itself, is one which has vexed lawyers and law courts for years, as they struggle with an apparently innate inability to apply copyright law (which has been settled for decades with respect to books and plays) to computer software. A recent UK decision in the case of Navitaire Inc v EasyJet Airline Company [2004] EWHC 1725 has given the English court an opportunity to revisit the law on the copying of software, and in particular to what extent the "look and feel" of a software program may be protected by copyright.
Background
The case concerned EasyJet's development of a ticketless flight reservation system. EasyJet had originally used a system known as OpenRes, provided by Navitaire for use by EasyJet, but wished to develop its own reservation system. It was acknowledged that EasyJet wanted to make the new system as similar to the original as possible in look and feel, to ensure that operators experienced on the OpenRes system would not require substantial re-training.
EasyJet, with its co-defendant Bulletproof Technologies Inc, developed the replacement system, named eRes. Navitaire sued EasyJet and Bulletproof and claimed that the copyright in various aspects of its own OpenRes system had been infringed by eRes.
Claims by Navitaire
Navitaire claimed that eRes infringed the copyright in the OpenRes system in a number of ways:
There were a number of other highly technical claims regarding infringement in an OpenRes database, which were of little general application, and will not be considered further. It was common ground that neither EasyJet nor Bulletproof had access to the source code of OpenRes, and so the claims by Navitaire were on the grounds of non-textual copying.
Summary of the decision
In respect of the "look and feel" or "business logic" claim, Justice Pumfrey held that the literary copyright in the source code of the software could not be extended to cover the business logic of a software program. This element of the decision is discussed further below.
Following the case of Exxon Corp v Exxon Insurance Consultants International Ltd [1982] RPC 69, the judge held that copyright did not subsist in the individual commands within the command set, and that the overall collection of commands comprised a computer language, which itself was excluded from protection by Article 1(2) of the European Software Directive (91/250/EEC of 14 May 1991) because it comprised "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces."
It was also held that the text based screen displays were tables, and thus literary works, but were similarly excluded from copyright protection by Article 1(2) of the Software Directive.
Navitaire was, however, successful in its claim for infringement of the icons and the graphical user interface of OpenRes. Justice Pumfrey held that the icons embodied sufficient skill and labour to attract protection as artistic works, the copyright in which EasyJet had infringed.
Analysis of the findings on look and feel
Navitaire based their claim for "look and feel" infringement on the premise that the source code of the software was analogous to the plot of a novel, a concept that Justice Jacob had referred to in his judgment in Ibcos Computers Limited v Barclays [1994] FSR 275, in which he said:
"The true position is that where an 'idea' is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the 'idea' is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (ie. the 'idea') of a novel or play can certainly infringe - if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between 'idea' and 'expression'): Nobody has ever been able to fix that boundary and nobody ever can."
Justice Pumfrey in this case considered that this problem, as applied to computer programs, is unique, namely that two completely different programs can produce an identical result. This is so even if the author of one has no access at all to the other but only to its results. He went on to say:
"To say these programs possess a plot is precisely like saying that the book of instructions for a booking clerk acting manually has a plot: but a book of instructions has no theme, no events, and does not have a narrative flow. Nor does a computer program, particularly one whose behaviour depends upon the history of its inputs in any given transaction. It does not have a plot, merely a series of pre-defined operations intended to achieve the desired result in response to the requests of a customer."
The judge, rather quaintly it may be said, contrasted the above situation to a chef, who invents a new pudding:
"After a lot of work, he gets a satisfactory result, and thereafter his puddings are always made 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 labour, 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? I believe the answer is no."
The judge therefore rejected Navitaire's claim for infringement of copyright arising out of the "look and feel" or "business logic" of the OpenRes software.
Conclusions
Although the Australian courts are clearly not bound by this decision, they will regard it as persuasive, and it indicates a reluctance on the part of the UK courts to extend copyright protection to computer software beyond the literal copying of the source code. This view is only strengthened by the court's rejection of the "plot of a novel" analogy with regard to computer programs. The decision is likely to be appealed.
