Indirect Copying of Computer Programs – Infringing or Non-Infringing?
Deirdre Moynihan, Katharina Scheja, Clemens Mayer-Wegelin · Computer Law Review International · 2010
The English High Court has recently considered the extent to which copyright law enables owners of copyright in software and manuals to prohibit the development and commercialization of functional reproductions of software. In the UK and in Germany, courts have been reluctant to find copyright infringement when a competitor designs a computer program with functionality similar to that owned by the copyright owner if the competitor does not have access to the source code of the original computer program. However, although UK and German courts have reached similar conclusions when determining whether the functionality of the original computer program is protected by copyright, the reasoning adopted by the courts in each jurisdiction is different and there are apparently diverging views on the extent to which programming languages and interfaces may be protected by copyright. Fortunately, the UK courts have identified and referred a number of questions to the ECJ on the interpretation of the Software Directive and the Information Society Directive (the EU Directives) as they apply to copyright protection for computer programs as literary works. Bearing in mind that national law on copyright protection for computer programs in each of the UK and Germany has its origins in the EU Directives, this article considers recent court decisions in the UK and in Germany on the extent to which it is permissible to create a computer program designed to emulate the functionality of another computer program. The analysis considers the questions raised solely by treating computer programs as eligible for copyright protection as literary works as a detailed analysis of whether other forms of copyright (e.g., artistic copyright) may provide protection in certain circumstances is beyond the scope of this article. The authors also discuss the issues to be referred to the ECJ and the extent to which the courts in the UK and Germany have reached similar conclusions in similar cases.