When are software and GUIs copyright protected?
At Dragon Argent, we are frequently asked whether software development gives rise to any intellectual property rights – the answer for which is unfortunately not straight forward and will depend on several factors. In this article, we explore how the recent decision by the UK Court of Appeal has helpfully given software developers some assurances when it comes to copyright protection of their products.
What is a Graphical User Interface?
A Graphical User Interface (GUI) comprises of an interface with which a user interacts. It is a visual composition of icons, buttons, menus, animations, gesture controls – anything that enhances the layout of the underlying software to the end user. Companies invest considerable sums in developing GUIs, which warrants adequate legal protection.
How is a GUI protected?
A GUI is typically protectable in the UK via a series of intellectual property protections, such as patents and copyrights. Whilst patents need proper registration, copyright vests in the author automatically upon creation and is protectable provided certain legal tests are met. This article focuses on protection afforded to GUIs under copyright by looking at the latest developments in case-law, in particular, developments surrounding the concept of originality.
In addition to looking at the case law, it is important to understand that in the UK, the statue - Copyright, Designs and Patents Act 1988 - enables copyright to subsist in certain types of work: original work, which can be literary, dramatic, musical, and artistic in nature; sound recordings, films or broadcasts; and typographical arrangements of published editions.
In the case of GUIs, the most relevant categories that arguably afford copyright protection are literary and artistic. Literary, because the underlying code or text may be classified as an original literary work; and artistic, because the interface may have distinguishable original visual features. This is assessed on a case-by-case basis, through appropriate legal tests.
The case law history
To be protected by copyright, a work needs to be original. The approach in the UK in assessing originality has traditionally been based on the test of the ‘look and feel’ and whether ‘sufficient skill, labour or effort’ has gone into creating the work, as held in Navitaire v Easyjet and Nova Productions v Mozooma Games.
This has been a lower threshold and a different test compared to across the English Channel, where the Court of Justice of the European Union (‘CJEU’) held in Infopaq v Danske that a GUI must be an ‘author’s own intellectual creation’ to afford copyright protection. An author must make free and creative choices to gain copyright protection, essentially demonstrating creative freedom.
The latest case, THJ Systems v Sheridan, heard in November 2023 by the Court of Appeal, led to some important clarifications regarding which test to use in assessing originality. It also led to other important principles regarding copyright law.
THJ Systems v Sheridan
In THJ Systems v Sheridan, the two parties, Mr Mitchell of THJ Systems (the ‘Claimant’) and Mr Sheridan (the ‘Defendant’) shared an interest in options trading and formed a partnership. The Claimant had developed software which tracked live markets and presented findings visually in the form of ‘risk and price charts’ (the ‘Charts’) for trading. The Defendant ran training courses and under a licence, used these Charts as a part of these courses. The relationship fell apart, yet the Defendant continued to use these Charts upon expiration of the licence. The Claimant filed for breach of copyright, whilst the Defendant argued that the Charts were not sufficiently original to attract copyright protection. The case was heard in the High Court.
At the first instance, the High Court held that the Claimant had demonstrated ‘sufficient skill, labour or effort’ and therefore the Charts amounted to artistic work. However, it was also held that there was a lack of evidence to prove that the Defendant had infringed copyright. The case went on to the Court of Appeal on the basis that the Claimant appealed that copyright had indeed been infringed, whereas the Defendant appealed that the Charts were generated by a software, and questioned whether they were artistic works sufficient to warrant copyright protection.
Although both courts reached the same conclusion in relation to copyright arising in the GUI, the Court of Appeal decided that the High Court applied the incorrect test of ‘sufficient skill’ to determine whether the GUI and Charts were original and artistic works. The Court gave preference to the originality test used by the CJEU, which holds originality to be the ‘author’s own intellectual creation’. It was found that the GUI was ‘laid out with care’ and that the Claimant had used independent creative thought in assembling the end product, such as a selection of commands, fonts and colours. Even though the level of visual creativity was low, originality was found in the Charts created by the software to be protected as artistic works.
Why is this decision significant?
For companies involved in software development, it is now clear that GUIs and the visual imagery created by underlying software are capable of being original artistic works.
Companies must bear in mind that creative freedom is important in determining originality – this decision made it clear that the originality test is not met where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.
The Court of Appeal concluded that the test of ‘sufficient skill, labour or effort’ was an outdated test and no longer the correct test. Instead, it is now clear that creative freedom is pivotal in originality. This decision is also significant in light of Brexit, because THJ Systems v Sheridan shows that UK courts have not yet chosen to deviate from principles established by EU judgments.
In conclusion, the point to remember is that copyright protection comes into place when a work is an ‘author’s own intellectual creation’. In the context of GUIs and software, the underlying code and visuals generated by the software can be protected by copyright, provided that a degree of creative freedom is displayed – albeit the bar for this remains low.
For more in-depth guidance and advice on copyrights or other intellectual property rights, please contact one of our IP specialists by scheduling a discovery call through the link below.
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