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Website Copyright: What's Protected and What's Not?

13 June 2005

When easyJet set about commissioning a new website user interface for its ticket-less internet booking service, doubtless it did not expect to find itself defending hefty copyright infringement proceedings. The system that easyJet commissioned and subsequently implemented from BulletProof Technologies (eRes) bore considerable similarity to the OpenRes system that it had formerly operated under licence from Navitaire Inc, so much so that Navitaire brought proceedings for breach of copyright.

There were a number of allegations covering infringement of intellectual property rights and breach of licensing terms. On the whole the allegations of infringement of copyright in the usual sense were relatively minor. The radical aspect of the case was that the thrust of the litigation was in the allegations of ‘non-textual’ copying in the application as a whole. The judge commented on the fact that even Navitaire had encountered difficulties in framing its claim and conveying what it meant by ‘non-textual copying’. However Navitaire settled on the application’s ‘business logic’, meaning its method or manner of response, function and look and feel, essentially what it did and the way it did it. Incidental to that, Navitaire methodically attacked the various elements of the application; the graphical user interface screens, the character screens, each of the individual commands for the new system and collections of commands as ‘compilations’. The elements were challenged on the more conventional grounds of breach of artistic and literary copyright. The judgment (with commercially sensitive information removed) runs to some 111 pages and this article is far from a detailed treatment of the case, however of special interest to non-lawyers will be the lack of protection for what is referred to as the ‘general business logic’ of an application and the apparent legitimacy of ‘non-textual copying’.

It is important to remember that easyJet never had access to the code for Navitaire’s OpenRes application and Navitaire could not therefore claim that the code had been copied. easyJet had wanted its users to have substantially the same experience under the new system as under the licensed Navitaire application. The replication of the look and feel of the site appears to have been very much part of the brief for BulletProof Technologies and easyJet’s in-house team.

A similarity in the look, capabilities and functioning of a site may prove an irritation to those with a similar product. Time and funds will have been invested in developing and marketing the application and a competitor is never a good thing for a supplier, but is there a breach of copyright issue?

The answer, it appears, is ‘no’. Navitaire’s argument that the ‘look and feel’ and ‘business logic’ of the system should attract protection did not meet with success. The idea and logic of the system had been copied albeit with the use of different programming. Navitaire felt aggrieved that its idea had been exploited and presumably felt that this could not be without remedy. However, the judge applied the old law to a new and developing field; copyright affords protection not to an idea, but to the expression of that idea. That claim therefore failed. It was perfectly legitimate for an application to be studied and reproduced with independent programming effort, akin to someone observing a machine’s response to external stimulus and creating a machine that does the same thing, or a chef creating a similar looking and tasting dessert without sight of the original recipe.

Having found that there was not copyright in the application taken as a whole the judge broke the application down and considered copyright issues in relation to the screens, the commands and the databases.

Concerning the screens a distinction was made between the types of screen and different forms of protection were said to apply to each. The judge concluded that the character based screens could be viewed as literary works but were excluded from copyright protection by virtue of the 1991 European directive preventing ideas underlying a computer programme and computer languages from attracting copyright. easyJet were home and dry on those screens.

Concerning the graphical user interface screens, he concluded that they were artistic works and therefore attracted artistic copyright. In this instance artistic copyright had been breached (the icons used were copied). It follows that where the graphical user interface is sufficiently similar so as to suggest direct or altered copying, a claim may lie against an imitator. Replicating someone else’s icons, pictures, and layout, may get you into trouble.

There were many other allegations in the case, some concerning the breach of licence terms, some of which Navitaire succeeded on, however Navitaire’s successes were very much overshadowed by its failure to extend copyright protection to the idea and workings of the program and this was reflected in the court’s decision as to who should pay the costs. The ‘look and feel’ and ‘business logic’ arguments had been the underlying thrust of the claim and despite the fact that there were some wins for Navitaire, it was ordered to pay 85% of easyJet’s costs.

So it remains the case that to sustain a successful action a party has to show breach of artistic or literary copyright through the copying of code, other textual copying or copying of artistic work. This is obviously easiest when there has been exact copying but realistically this is more likely to take the form of ‘substantial copying’ or what is often referred to as ‘altered copying’ meaning that the bulk has been copied with only small distinctions here and there differentiating the two works.

Arguably the case amounts to a green light to the exploitation of another’s logic or method behind a computer programme. On a positive note, this approach will encourage competition and development. The concept of similar ‘look and feel’ still has its place where there are allegations of passing off. This is a quite separate cause of action where a competing business uses a similar ‘get up’ for its product, causing confusion in the market and trading on another’s goodwill. It is a far more subjective and vague concept. Despite Navitaire’s best efforts it will remain outside the realms of copyright for the time being.

For more information please contact Charlotte Reid, Solicitor.
 

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