Your code is being copied

2 December 2008

Is your software being copied?

Once or twice a week I am asked whether or not we can advise on software copying. I hope this is helpful.

UK case law has been divided between two types of copying; literal and non-literal copying.

1.Literal copying is the easier to prove. It involves making an identical copy or copying a substantial part of the source or object code.

2.Non-literal is more difficult. The structure and appearance or perhaps how the program works ie the operation is copied. However your source code or object code remains untouched. You are in short copying the "look and feel" of your program.

For ease of reference, the UK case law discussed below is further divided into three categories:

Literal copying

In Cantor Fitzgerald International and another v Tradition (UK) Limited and other [2000] RPC 95, whether copying has occurred depends largely on the skill and labour in the design and coding which you created and which is said to have been copied. It can be more difficult to establish copying where the code has been altered. But again copying can be proven if it can be shown that a substantial part of the programmer's skill, labour and judgment has been taken.

In Ibcos Jacob J accepted that while copyright could not protect general ideas or schemes, it could protect detailed ideas:

"United Kingdom copyright can protect the copying of a detailed idea. A good guide is the notion of overborrowing of the skill, labour and judgment which went into the copyright work. Consideration is not restricted to the text of the code..most literary copyright works involve both literal matter (the exact words of a novel or computer program) and varying levels of abstraction (plot, more of less detailed of a novel, general structure of a computer program)".

Non-literal copying

Serious problems may arise where you believe your program is being infringed but you accept that the infringer has not had access to your code. That is the "look and feel" infringement. Two completely different computer programs can produce an identical result. However how do you prove copying? It is not easy.

Case law

John Richardson Computers v Flanders 1993 FSR 49. while there were no literal similarities it was alleged that there were similarities in the programs' design features. It was held that infringement was possible where the general scheme or features of the original program had been copied. The Judge applied US case law and this case has been criticised and is largely considered to be incorrect. In a more recent case of Navitaire v easyJet an airline booking system was alleged to have been copied through "non-textual copying" which produced the same, or similar, inputs and gave similar results.

An analogy was given of someone taking a plot of a novel and rewriting it, this was rejected as what is usually meant by non-textual copying was "copying without access to the thing copied, directly or indirectly". The Judge provided a better analogy of a chef who liked the taste of a particular pudding, and instead of using the existing written recipe, developed and recorded his own recipe to produce a pudding which tasted the same.

Key questions

Were the features relied on generalised ideas and did the copying amount to a substantial amount of the program?

Did the features you rely on to do with skill and effort expended by you as the programmer?

Michael Coyle is a Solicitor Advocate who specialises in information technology law and intellectual property law. He can be contacted on michael.coyle@lawdit.co.uk, his office number +44 (0) 2380 235979 or mobile 07976 724258