The defendant, had written the program the copyright in which was asserted against his new program. It was accepted that he did not have access to a copy of his earlier work when he wrote the later.
Held: The court rejected any contention of deliberate copying: ‘In short, I do not accept the evidence I have discussed under heads (i) and (ii) in this section of my judgment as establishing deliberate copying of the [earlier] program by Mr Flanders. But the fact remains that he had, as I have said, an intimate knowledge of the [earlier] program at all levels of abstraction (to use the term employed in Nichols v Universal Pictures Corporation (1930) 45 F (2d) 119 and other United States authorities that I have mentioned) and it is possible that he has, unconsciously or unintentionally or in some other way which he did not consider to be objectionable, made use of that knowledge in a way that amounts to copying in the context of breach of copyright. It is that possibility that I must evaluate in appraising the particular similarities that I have identified.’ 17 similarities were found: ‘I find it impossible not to conclude that the line editor in the [later] program has substantially been copied from the line editor in the [earlier] program. If all that had been copied was the concept of a line editor that would not have mattered for present purposes, being a mere adoption of an idea. But similarities such as the obscuration of the text which is to be amended, the message ‘Insert to edit’ in one case and ‘Copy to edit’ in the other and, above all, the idiosyncratic restoration of text which is merely deleted and not replaced demonstrate that there has been copying of expression as well as idea.’ The copying of source code is analogous to taking the plot of a book. An author who takes the plot of another work and copies nothing else will still infringe copyright if a substantial part of the earlier author’s work is represented by that plot, and the same goes for computer programs.
Ferris J
[1993] FSR 497, (1993) 26 IPR 367
England and Wales
Cited by:
Cited – Navitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Leading Case
Updated: 01 November 2021; Ref: scu.220328
