At the beginning of 2005, technology and IP lawyers everywhere were still talking about the judgment in Navitaire v easyJet and BulletProof which was finally published in December 2004. The case provided an interesting and important insight into how the English Courts are likely to apply the laws of copyright to computer software and its development.
The case concerned the claimant’s (Navitaire’s) software, which was designed to operate a ticketless airline booking system. The first defendant, easyJet, previously licensed and used the claimant’s software. The second defendant, BulletProof, was employed by easyJet to produce new software to replace the claimant’s software. Together, the defendants set out to replicate the claimant’s software program so that the new software produced was “substantially indistinguishable” from, and had the same “look and feel” as, the claimant’s software. Despite these blatant acts of copying, because copying of the software’s source code itself was not involved, the defendants were in most respects held not to have infringed the claimant’s copyright in the software.
The defendant’s software used identical input codes (which produced identical outputs) to the claimant’s software. Some codes were complex, for example A[departure date][city pair]/[return date](optional +[days].[fare class]), and the defendants had also copied these. However, the Judge held that no copyright subsisted in any of the codes (or all of the codes together as a compilation) for two reasons. First, the codes were not recorded in the source code (or anywhere else in the software) as the software was designed to ’parse’ the complex codes “bit by bit” rather than as a complete code. The codes were not therefore “recorded” which is required for literary copyright. Secondly, the Judge held that the codes were a “computer language” which cannot be protected by copyright.
One of the most interesting claims made by the claimants was that there had been a “non-textual” copying of the software, and that the “business logic” behind the software had been copied. The claimant based its legal argument on an analogy between the function of the computer program and the plot of a literary work, which had been successfully argued in previous cases. Here, however, the Judge decided that the analogy was a poor one and that the relevant “skill and labour” had not gone into creating the “business logic” of the software. As a result, the “business logic” of the program could not attract copyright protection.
The judgment confirms the position that the law of copyright will protect computer software, but only if the source code of such software is substantially copied. There may remain some scope to argue that the architecture or structure, or even the business logic, of computer software has been substantially copied. However, for copyright to subsist in those elements of the computer software, a relevant amount of the author’s skill labour and judgement must have gone into designing them.
On the face of it, the court’s decision appears unjust. Navitaire’s licensee set out to copy its software package but, because of the way it was copied, Navitaire was not successful in claiming protection (or recompense) from the law of copyright. For much of 2005, there was talk (and much excitement) about whether Navitaire would appeal the decision, having obtained permission to do so. However, to the disappointment of many, it was confirmed in November 2005 that the parties had reached an out of court settlement and that there would be no appeal.
This article first appeared in our Technology Annual Review, March 2006. To view this publication, please click here to open a new window.