IPR in software
There have been a rash of cases recently concerning intellectual property rights (IPR) protection for software. Copyright has been to the fore, but patent law has been getting in on the act as well. The common theme has been the sharp limits on IPR protection for software.
The legal framework of software copyright
Original computer programs are protected as 'literary' works (section 3(1) of the Copyright, Design and Patents Act 1988 (CDPA), as amended by section 3 of the Copyright (Computer Programs) Regulations 1992). The definition of computer program is derived from the Directive on the Legal Protection of Computer Programs (91/250/EEC), and protects both the program and the preparatory design material used to create that program (more on this below). This literary copyright protects the source code written by a computer programmer, which is then translated into the more efficient object (binary) code for running on computers. The interface with the user - the display of bitmap graphics and frames on the screen - is usually considered under the heading of 'artistic' copyright. Copyright in the source code and in the interface fall to be considered separately.
Copyright protects the 'expression' of the program, but not the ideas and principles behind it (article 1.2 and recitals 13 and 15 of the directive, and article 9.2 of the 1994 TRIPS Agreement).
Copyright is infringed by copying a substantial part of the copyright work. A party who produces even a very similar program will not infringe copyright if they have developed the program without copying. In Nova Productions Limited v Mazooma Games Limited (heard with Nova Productions Limited v Bell Fruit Games Limited) [2007] EWCA Civ 219, Nova and Mazooma both produced digital games of pool. Mazooma admitted that its game had been 'inspired' by Nova's - it had brought Nova's game into its offices to examine the gameplay, and had adopted a number of features from Nova's game. Nova claimed infringement of the copyright in its program.
Mazooma had not copied Nova's source code (such that there was no infringement of literary copyright), and its individual screenshots had a different appearance to Nova's (such that there was no infringement of artistic copyright). Mazooma tried to deal with the dissimilarity between the screenshots by arguing that the court should consider them as a series, in which case, it said, there would have been substantial reproduction and so infringement. The Court of Appeal refused to accept the argument. It said that a series of frames of Felix the Cat running off a cliff edge into space, looking down and falling would not be infringed by a series of frames showing Donald Duck doing the same thing. The CPDA contains specific copyright protection for films, but there is no copyright protection for a series of images in addition to the protection for individual images.
Nova tried a different tack. As mentioned above, the directive protects both the program and the preparatory design material used to create that program. Nova argued that preparatory material - which presumably would describe the program's functionality - should be considered to be part of (as opposed to distinct from) the program, and that if it had been so considered then, again, there would have been substantial reproduction. The court rejected this argument, too. Preparatory material that specified the functionality of a program might attract protection as a literary work, but the functions described were 'ideas' and were not protected. The court found for Mazooma. The limits of software copyright protection were demonstrated even more sharply in Navitaire Inc v (1) EasyJet Airline Company and (2) Bulletproof Inc [2005] EWHC 0282 (Ch). EasyJet was licensed by Navitaire to use Navitaire's electronic reservations system, but then commissioned its own system. So far as possible, users were not to notice any difference when they used the new program. The finished product functioned in much the same way as Navitaire's system, and its interface had a similar 'look and feel'. However, again, no source code had been copied, and the court held that the interfaces, although similar, were very simple and that no infringement had taken place, save in the case of a few of the icons. Navitaire tried to argue that the functionality of its program had been copied, through 'non-textual copying'. Notwithstanding the distinction in copyright law between an idea (which is not protected) and its expression (which is), several cases suggest that if an idea is detailed enough, then it can be infringed - for example, the plot of a novel or a play. Allegations of non-textual copying lie at the heart of the litigation over the The Da Vinci Code (albeit that the claimants have not made them stick). But the court in Navitaire refused to accept the analogy between a program's functionality and the plot of a novel. It compared the position with that of a chef who develops a recipe for a new pudding. If a competing chef were to develop his own recipe, then there would be no copyright infringement, even if the puddings were identical. A program, it said, is merely a series of pre-defined operations. If these operations are not copied, then there is no infringement, even if the final functionality is identical. Point Solutions Limited v Focus Business Solutions Limited [2007] EWCA Civ 14 is interesting as a study in the steps that can be taken where a source code might have been copied. Under an outsourcing arrangement, Point had worked on the source code of a program belonging to Focus. Point then launched its own software, in competition with Focus' program. Focus asked Point to demonstrate that its program had not copied Focus' program. It offered that the parties should refer the source codes of each program to an independent expert, and that if no copying were found, then Focus would concede that no copying had taken place. Point did not take up this offer of alternative dispute resolution (ADR), and instead sought a declaration that it had not copied Focus's software. The court refused to grant the declaration. In spite of court directions that both parties should disclose their source code to an independent expert, neither did. This failure counted heavily against Point, since it was the applicant for the order and the party needing to discharge the burden of proof. It also counted heavily against Point that it had not taken up the offer of ADR. Although Point's application failed, the fact that it was able to make it at all is striking. For patents, registered trade marks and designs, statute provides a regime by which a party wrongfully threatened with an infringement claim can bring an action for a declaration and damages against the party making the threat (see [2006] Gazette, 7 December, 26; section 70 of the Patents Act 1977; section 21 of the Trade Marks Act 1994; and section 235 of the CPDA). No such statutory regime exists for threats of copyright infringement. But the fact that Point could bring an application for a declaration of non-infringement in the face of Focus's threats - albeit without a right to damages - should give developers pause before they accuse others of infringement. Software patents
Vilified by many in the IT community, software patents are widely granted in the US, and are available in Europe, too. In Europe, computer programs, as such, are excluded from patent protection (article 52(2) of the European Patent Directive). This exclusion is usually explained by the fact that bare programs should be considered under the copyright regime. But if a program has a 'technical effect', then it is capable of patent protection. So, for example, a program that reduces information content to enable more rapid transmission over reduced bandwidth channels could be said to have a 'technical effect' and be patentable, which was the invention in the BlackBerry litigation, albeit the patent was held invalid on other grounds - Research In Motion v Inpro [2007] EWCA Civ 51. Of course, a program having a technical effect will still be subject to all the usual checks on patentability, in particular whether the invention is novel and inventive.
Last autumn, the appeal court handed down its first judgment on the patentability of software in In the matter of patent application GB 0314464.9 by Neal William Macrossan [2006] EWCA Civ 1371. Mr Macrossan's patent application involved an automated system for acquiring the documents necessary to incorporate a company, via a remote server. Lord
Applying these principles to Mr Macrossan's application, Lord Justice Jacob said the actual contribution (step 2) was the provision of a computer program, using standard hardware, to advise on and create appropriate company formation documents. That invention consisted solely of the program (step 3), and was therefore excluded. There was no technical contribution beyond the bare program (step 4). The application was rejected. The courts have been no kinder to software patents since Macrossan. In the Matter of Bloomberg LP's Application [2007] EWHC 476 involved an application for a patent to a method of distributing data, in which transmitted data was mapped to a form suitable for the user's application. Mr Justice Pumfrey refused to allow the application, holding that the actual contribution of the invention consisted solely of a computer program (Macrossan step 3) and that it had no technical effect (Macrossan step 4). IPR protection for software, then, is of fairly limited scope. The appeal court in Nova held that it is legitimate to make a program that emulates another, so long as it does not involve copying of the program code or any of the program's graphics. Software patents in the UK are unlikely to become less problematic any time soon - the president of the European Patent Office has just responded with a polite 'non' to a request by Lord Justice Jacob in Macrossan that it clarify the different methods employed by the office to assess the patentability of software. Still, given that the scope of patent protection can be so much broader than copyright protection, and given that software patents are much broader in the US, software developers would do well to check the patentability of their products, while programmers 'inspired' by third-party programs should check that they will not find a patent in their path.
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