Court of Appeal delivers important judgment on “look and feel” infringement of copyright in software

The last few years have seen two major cases in England on the subject of “look and feel” copyright infringement of software, and the Court of Appeal has now in Nova Productions v Mazooma Games effectively said that English copyright law does not prevent the copying of another program’s functionality – as long as none of the code or graphics are copied.

Background

The code of software programs is protected by copyright in the UK (and in most other countries). The question has always been how far copyright went in protecting software – it was one thing to catch an ex-employee who had made off with a copy of the source code, quite another to act against a competitor who had no access to your source code but who nonetheless copied what your software did. The Court of Appeal has in the last few weeks in Nova Productions v Mazooma Games given decisive guidance in this area.

Facts

The claimant had produced a successful coin-operated video game based on pool which allowed players to win cash prizes. It was the sort of game seen in pubs and arcades.

The defendants also produced video games based on pool aimed at the same sort of market. There were some similarities but the games played very differently. The defendants never had access to the claimant’s source code, but of course had the chance to play the claimant’s game, and knew the video games market in general.

In the High Court, the judge found that, of the instances of copying alleged, none owed anything to actual copying from the claimant’s game – though some features were inspired or affected by the claimant’s program. The fact that there were similarities was a result of the defendants’ general experience and knowledge of what was commonplace in the market.

The Court of Appeal’s analysis

The images stored as graphics in a program are obviously graphical works and protected as such by copyright. The claimants said that the sequence of such images was also protected. The Court of Appeal disagreed: moving images were protected by film copyright and a series of still images was just that and nothing more.

The code of software is of course protected as a literary work. The question was how far copyright would go in protecting the idea behind a literary work as opposed to the literal text (or code) itself. Again the Court of Appeal disagreed with the claimant’s arguments. There was no special case for computer programs such that their ideas – or combinations of their ideas – were protected. Copyright protected skill of a certain type – in the case of computer programs, it protected in particular the work that went into the programming, not the work that went into the general idea or ideas behind the program.

The Court of Appeal cited with approval the 2004 decision in Navitaire v easyJet. In that case the defendants had set out to replicate as closely as possible the functionality, look and feel of the claimant’s program, but the judge still found that there was no copyright infringement (other than for copying some of the icons). The Court of Appeal summarised the Navitaire judgment as meaning that

“merely making a program which will emulate another but which in no way involves copying the program code or any of the program’s graphics is legitimate”.

Implications

Any decision of the Court of Appeal carries great weight, and so a number of conclusions can be derived from this judgment, and also from the Navitaire case.

It now appears good law that simply copying what a program does and the way it does it is not infringing the copyright in that program

Copyright protects the work that goes into producing the work itself, in the case of computer programs, the work of coding, not necessarily the work of analysis on which the coding was based

Of course, if someone copies actual lines of code, or graphics such as icons, then this could well be copyright infringement

All this is quite different from the protection something may have under patent law – an inventor of an idea might well have obtained patent protection for it and proceed without any allegation of copyright infringement

April 2007

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