Written by Patent Consultant Maria Laini.
Copyright does not need registration, so you would not need to pay the hefty fees demanded by a patent office, nor would you need to bother instructing an attorney to write a patent application. On paper, it may sound like a brilliant idea, so what is the catch, if any?
A judgment has just come through the Intellectual Property Enterprise Court regarding a UK case of alleged copyright infringement of software (1). This case gives us an important warning with regards to the actual scope of protection which copyright law can offer with regards to computer programs. Critically, this case is in alignment with conclusions of other, similar court cases in the EU and in the US and applies the teachings of an important EU Directive on the matter of copyright (2).
The court case
The case involved two British companies, Valos and Edozo, which work in the same field of software solutions for real estate searches, evaluations and more. Each company has their own platform, which presents information to users through a graphical user interface (GUI) and enables the prompt generation of reports based on said information, tailored to specific customers’ requests.
Valos accused Edozo of copyright infringement and took them to court. The accusation of infringement is based on two different aspects of Valos’ product. The first accusation is of infringement of the copyright in the “Valos Template Report” and the “Valos Report Graphics.” The second, and more interesting part, is an accusation of infringement of the underlying software used to generate the Valos Reports. This second accusation is what is worth taking a close look at since the judgment gives us a particularly important insight into what can actually be protected by copyright.
The Edozo Reports are produced through a code which relies on a particular sequence of dynamic and modular steps, which guide the user to the production of the automated Edozo Report. This dynamic logic and modularity have, according to Valos, substantial similarities with the essential concept based on which the Valos Reports are generated. In other words, the reports are created through a remarkably similar software concept.
Even if, by Valos’ admission, Edozo had no access to the source code, Valos accused them of indirect copyright infringement. In other words, Valos accused Edozo of getting a bit too inspired by their solution and ending up creating an essential copy of it.
When accusing Edozo of unlawfully copying, Valos was relying on their presumed benefit of copyright protection on their own software, and more specifically on copyright protection on the core logic behind the Valos source code used to create the Valos Reports. But did Valos’ software actually benefit from any copyright protection?
Copyright protects the source code, not the idea
Copyright protects, by definition, the expression of an idea, and not the idea itself. This is why this right is used to protect novels, songs, paintings, and other forms of artistic work. You can have copyright protection for your own particular expression of an emotion, such as love or hate, for example in poetic form, but cannot copyright the emotion itself.
It is commonly understood that, according to copyright law, it would be unlawful to read Harry Potter and then produce a story that is essentially inspired by Harry Potter’s plot. Infringement of copyright can still stand even if the story is written using different words.
It is less intuitive to understand how software can benefit from copyright protection, as this is discussed far less frequently.
In essence, copyright can be used to protect specific source codes and object codes as “literary work.” Copyright cannot be used to protect a particular functionality of a computer program, but it can be used to protect the expression of said functionality in a specific source code.
The judgment
The judgment in this court case stresses once more the significant difference between the source code and the more general idea of a computer method, by dismissing Valos’ claim that Edozo being inspired to create a code based on their same idea of dynamic logic and modularity can count as indirect infringement of copyright.
Importantly, Judge Hacon found that the analogy between a copied novel, with the same plot but different written form, and a copied software with different source codes cannot stand.
The judgment cites an analogy previously used in another court case, by Pumfrey J:
“Take the example of 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 he 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.” (3)
Beyond the UK Courts: what happens in the EU?
The EU has written an especially important Directive, which aligns with the conclusions of the court case discussed above. Section 11 of the Directive explicitly states that “only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright.” The Directive further clarifies that “logic, algorithms and programming languages” are also not protected, since they comprise ideas and principles, and are not expressions as required by copyright law (2).
Case law from the Court of Justice of the European Union (CJEU) aligns with the Directive. For example, the final judgment leading the famous CJEU case between SAS Institute Inc and World Programming Ltd confirmed that the reproduction of functionalities (and not the strict, literal reproduction of the source code implementing said functionalities) described in a user manual cannot be protected by copyright (4).
What do the US courts say?
Relevant case law in the US draws similar conclusions. In Lotus Development Corp. v. Borland, the First Circuit held that a menu command hierarchy of a computer spreadsheet program is an “uncopyrightable method of operation,” and thus not a protectable expression under US copyright law. Since the plaintiff did not copy the underlying computer code, but only the words and structures of Lotus’s menu command hierarchy, there is no ground for copyright infringement (5).
The judge in this case makes the important remark that “to assume a computer program is just another form of expression, like a film, may be incorrect. While the expression of the computer program may look or feel like the familiar subject matter of copyright, its substance may be more suited to protection by patent law.”
Conclusions
If you want to protect a particular computer method, and not the specific source code through which said method is implemented, do not rely on copyright protection. Copyright is not there to protect ideas, as opposed to patents, and would therefore have an extremely limited legal effect.
A patent application is generally a more appropriate route to protect computer‑implemented inventions. Whilst patent protection can be tricky to obtain for computer inventions in fields which fall in specific exclusions (6), it is always worth keeping in mind that copyright cannot provide a cheaper equivalent to patents, in terms of scope of protection.
Copyright and patent law were created to protect different types of intellectual property, and one cannot do the job of the other.
References
(1) Valos Ltd v Edozo Ltd [2024] EWHC (IPEC) — https://www.bailii.org/ew/cases/EWHC/IPEC/2024/
(2) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L 111/16 – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0024
(3) Navitaire Inc v easyJet Airline Co Ltd [2004] EWHC 1725 (Ch). —https://www.bailii.org/ew/cases/EWHC/Ch/2004/1725.html
(4) Case C‑406/10 SAS Institute Inc v World Programming Ltd [2012] ECLI:EU:C:2012:259.— https://curia.europa.eu/juris/document/document.jsf?docid=122362&doclang=EN
(5) Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996). — https://supreme.justia.com/cases/federal/us/516/233/ and https://law.justia.com/cases/federal/appellate-courts/F3/49/807/493948/
(6) “AI and Patent Law: The Technical Effect in Focus”, by Maria Luisa Laini — https://www.patrade.com/knowledge/ai-and-patent-law-the-technical-effect-in-focus
