Copyright in Look and Feel: The Last Shot in the Locker?

It is pretty generally accepted that the look and feel of software cannot be protected by copyright. It is common knowledge that the decisions in Navitaire Inc v easyJet Airline Co Ltd [2004] EWHC 1725 (Ch) and Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219 have between them killed off all hope of establishing a right under copyright in the look and feel of software – the screen and print formats and the command structure. I do not propose to review the details of those two cases which are sufficiently well known to anyone who studies these things, but I question whether there may not be one further argument which might, if the circumstances allowed, still be used with success.

 

One of the features of those two cases was that, although there was admitted to be copying of the general screen and command structure, the defendants had no (or in the case of Navitaire minimal) access to the source code of the claimant’s software.

 

An analogy which Pumfrey J used was of a chef copying a recipe from the dish itself, rather than any text (at [127]):

‘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 the 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.’

 

These words were quoted with approval in Nova v Mazooma at [47]. (It all reminds me of the youthful Mozart writing down Allegri’s Miserere after hearing it once in the Sistine Chapel.) It is this very lack of access to the source code which was so fatal to the claimants in both cases.

 

To date there has only been one unequivocal win for a claimant in an English software copyright case and that is Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275. It is also the only case where there was literal copying and a comparison of the claimant’s source code and that of the defendants revealed such strong similarities as to suggest direct copying.

 

Yet copying need not always be literal. The Copyright, Designs and Patents Act 1988, s 21 (as amended by the Copyright (Computer Programs) Regulations 1992) includes ‘adaptation’ in the list of infringing acts. The relevant words are:

‘21(3) In this part ‘adaptation’—

(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;

(4) In relation to a computer program, a ‘translation’ includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code.’

The only case I know of where the possibility of a translation of software was even mentioned is John Richardson Computers Ltd v Flanders [1993] FSR 497. In that case the defendant, Flanders, wrote the original software owned by the claimant. Although Flanders had returned his notes to Richardson before embarking on a new version for Ireland, there is not the slightest doubt that the original work which Flanders did for Richardson assisted him in producing the Irish version and indeed was the basis for it. However Flanders did not have access to the original version code when writing the Irish version. He would have relied on his memory for the general features of the software rather than for any specific lines of code. As the Irish version was for a different machine, there was no commonality of code between the two versions.

‘This by itself would not avoid infringement if the Chemtec [ie Irish] program could be said to be a translation of the BBC [original] program, or a substantial part of it, into a different language (see ….. s 21(4) of the 1988 Act). But this is not what is said to have happened. What is said is that the defendants have taken the general scheme of the BBC program, including the detail of certain routines of an idiosyncratic nature. The case was likened by Mr Wilson, on behalf of JRC [plaintiffs] to one in which the plot of a book or other literary work has been taken’.

 

So the possibility of translation in the right circumstances was admitted in this case. The trouble was it did not happen to fit the facts.

 

Consider the other leading case in this area Cantor Fitzgerald International v Tradition (U.K.) Ltd [2000] RPC 95. In that case the software was substantially rewritten by the original team. They had full access to their original version. Was their new software a translation or adaptation of the original code? We do not know because the issue seems never to have been considered.

 

It is the nature of a translation that the original text will appear nowhere. If I translate Proust’s novel A la Recherche du Temps Perdu, not a word of the master’s text will survive in my translation, except the proper names and a tiny handful of terms of art such as ‘madeleine’ for a kind of cake usual in France and not usual in England. These proper names and terms of art can in no way be argued to constitute substantial literal copying. A translation is the supreme example of ‘non-literal’ copying.

 

So if the defendants can be shown to have had access to the allegedly infringed software, a total lack of literal copying might not necessarily be fatal to an action in copyright infringement.

 

Richard Morgan is an IT Consultant of over 40 years’ experience. He is a Fellow of the British Computer Society. For many years he was Computer Officer at the two Houses of Parliament. He has always been interested in the interaction of IT and Law and is a founder member and a past Chairman of the Society for Computers and Law. He lectures and writes articles on IT and Law. He is the author with Kit Burden of Morgan & Burden on Computer Contracts 7th edition Sweet & Maxwell 2005, and of Legal Protection of Software: A Handbook xpl (formerly EMIS) 2002, and with Ruth Boardman of Data Protection Strategy, Sweet & Maxwell 2003.