Full case report

Navitaire Inc v Easyjet Airline Co & Another

Reference [2004] EWHC 1725 (Ch)
Court Chancery Division

Judge Pumfrey J

Date of Judgment 30 Jul 2004


Summary

Copyright – Computer programs – Dissimilar code – “Non-textual copying” – Airline booking system – User commands – Screen displays – Software Directive


Facts

Navitaire’s (N’s) predecessor-in-title had granted Easyjet (E) a licence for an airline booking system (OpenRes). N supplied E with a web interface to OpenRes (TakeFlight). E subsequently used another web interface and Bulletproof (B), in consultation with E, wrote a new booking system (eRes). N alleged that eRes breached the terms of E’s licence and infringed its copyright in works that went to make the source code of OpenRes. It was not in dispute that E had wanted a system that was very similar to OpenRes as regards the user interface and that eRes used dissimilar code but produced virtually the same result from the same input. N argued that the similarity of the systems to users meant that there had been “non-textual” copying in three aspects: adoption of the ‘look and feel’, copying of the commands to be entered and of the results and their display; other claims included that copyright in the command set and the ‘template’ of the screen displays had been infringed.


Issue

The primary issues were:
(1) Whether there could be “non-textual” copying of a computer program by replicating its ‘look and feel’ and producing similar results to similar inputs;
(2) Whether there was copyright in the individual or complex commands and if so whether it had been infringed;
(3) Whether there was copyright in the screen displays as templates and, if so, whether it had been infringed.


Held

Dismissing the majority of the claims, the main findings were:
(1) Copyright in computer programs did not protect against “non-textual copying” or ‘copying without access’. Computer programs are unusual in that two can be completely different but produce identical results. What had been copied was merely the ‘business logic’ of the program – carrying out the customer transaction and creating a record – which is not protected by copyright.
(2) Copyright did not subsist in the individual commands, which did not have the necessary qualities of a literary work. The complex commands were not ‘recorded’ in the requisite sense. Copyright does not subsist in computer languages, only works expressed in them. Any compilation of commands was a language and not entitled to protection. Further there was no overarching design.
(3) Some of the displays were properly characterised as underlying ideas and so not protected, while others were artistic works in respect of which the action succeed.


Comment

This is a case of tremendous importance to the computer software industry. It is common for program writers to emulate the look and feel and results of other successful programs using original code. If Navitaire had succeeded in its primary contention, this widespread practice would have been rendered unlawful in one swoop. Program writers would have gained a monopoly on the results that their programs achieve in addition to their rights in the code in which they are written. Companies would effectively have been forced either to remain with the same program and software developer or to change to something entirely different. The case also addresses the idea/expression dichotomy, the Judge commenting that the courts should be astute not to extend copyright protection to purely functional effects, as opposed to actual code.


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Instructing Solicitors

Field Fisher Waterhouse for Navitaire; Herbert Smith for Easyjet and Bulletproof.