Companies may be able to save money by having software written for their business that emulates an existing product, rather than buying a new software licence, following a legal ruling.
In the case Navitaire versus EasyJet and BulletProof Technologies, the High Court upheld a ruling that the low-cost airline had not infringed the copyright of former supplier Navitaire. EasyJet paid another supplier, Bulletproof Technologies, to make a separate booking system that was nearly identical in appearance and function to the system.
Navitaire sued EasyJet claiming copyright infringement. It claimed that EasyJet had adopted the "look and feel" and overall functionality of the Navitaire software; that it had copied individual keyboard commands entered by the user to achieve particular results; and alleged that certain forms of results in the form of screen displays and reports, including icon designs, had been copied so that the user interface looked the same.
Navitaire failed in its claim of copyright infringement for "non-textual" copying.
According to a briefing paper on the case by law firm Tarlo Lyons, the judge compared the software program to a pudding and argued that a chef who by trial and error manages to emulate the pudding does not infringe the copyright in the written version of the recipe.
As there is no copyright protection for the pudding itself, there can be no copyright infringement, he said.
However, Navitaire did succeed with the claim that enough skill and labour had been used in the creation of the Navitaire screen layout and icons for copyright to exist in them as artistic works, and it may yet launch a further appeal.
"This was essentially a victory for EasyJet as the substantial part of the value of the program was found not to infringe Navitaire's rights," said Tarlo Lyons. "New graphic interfaces could be designed by EasyJet to replace the infringing screens."
It added that the case indicated that, where there has been no reproduction of the source code, the UK courts were likely to have little sympathy for a claim by a software owner that the functional effects or the user interface of its software have been copied.
It is only the software code that is protected by copyright, not the function of the software.
Tarlo Lyons outlined recommendations that companies should consider before buying software licences.
First, consider whether it is possible to have software written specifically for your business that emulates the existing software in the market. Second, before embarking on creating new software, check that any existing licence terms do not prevent you from creating that software.