30 April 2019

Graphical User Interfaces – copyright protection

There has been significant development of Graphical User Interfaces (GUIs) in recent years, with companies refining their software layout, icons, animations, gesture controls and the like so that their software is pleasing on the eye and easy to use. In fact, mobile phone manufacturers are now so confident that their devices are intuitive to operate that mobile phones are no longer boxed with any instruction manual on how to use the software. It is therefore important that companies are able to protect the substantial investment in their GUIs.

In the UK, different aspects of GUIs can be protected under the patent, copyright and design systems. This article is the first of a series examining these different protection regimes, focusing on how GUIs can be protected under the copyright system.

Background to the law

The Copyright, Designs and Patents Act (CDPA) 1988 provides that copyright may subsist in eight types of original work: literary, dramatic, musical, and artistic works; films; sound recordings; broadcasts; and, typographical arrangements of published editions. This is an exhaustive list, meaning that if a work does not fit within one of these categories then it is not eligible for copyright protection under UK law. As we will see below, certain aspects of GUIs may fall within the definition of ‘literary’ and ‘artistic’ works and therefore qualify for copyright protection.

Copyright protection subsists automatically, meaning that it is not necessary to register for protection or pay any official fees, and therefore copyright can provide an inexpensive means of protecting GUIs. In addition, the term of copyright protection in literary and artistic works is (usually) the lifetime of the author of the work plus a further seventy years. This is significantly longer than the twenty year term of patent protection and the twenty five year term of registered design protection. A downside of relying on copyright protection is that it is necessary to show that an infringer copied the work. Copyright law would provide no protection if a third party independently conceived the same GUI.

Literary works

EU Directive 2009/24/EC on the legal protection of computer programs (previously Directive 91/250/EC, known as the ‘Software Directive’) requires that Member States treat computer programs as literary works, wherein ‘computer programs’ refers to the underlying software code. This means that the underlying software code of a GUI is potentially protectable under the UK copyright system, providing that the code is original. Clearly, in situations where an unauthorised third party copies the software code of an original GUI and implements identical code for their own interface, this will be an infringement of the copyright in the literary work. However, it is often possible to reproduce the look of a GUI using very different code, in which case this may well circumvent copyright protection in the literary work.

Artistic works

Original visual elements of GUIs, for instance, icons, graphics and screenshots, are protectable as artistic works. Copyright protection of the more general ‘feel’ of a GUI is more difficult for two reasons. Firstly, copyright does not extend to the protection of an idea, but only how an idea is expressed (this is often referred to as the idea-expression dichotomy). Therefore, the ‘feel’ of a GUI is too abstract to be afforded protection. Secondly, the ‘feel’ of a GUI would not fall within one of the eight categories of work as defined in the exhaustive list of the CDPA 1988 and therefore would not qualify for copyright protection in the UK.

Case law

The above principles were applied in Navitaire Inc v Easyjet Airline Co. & BulletProof Technologies Inc. (No. 3). In this case, Navitaire sought damages for infringement of their copyright in their ‘OpenRes’ airline booking system (see Fig. 1). EasyJet had previously obtained a licence for the OpenRes booking system but, in conjunction with Bulletproof Technologies, had since developed a new booking system, eRes (see Fig. 2). It was not disputed that EasyJet had wanted the new booking system to have a user interface which was substantially indistinguishable from the OpenRes system, but there was no suggestion that Easyjet had copied any of the OpenRes code. Instead, Navitaire alleged that by producing a user interface having the same ‘look and feel’ as OpenRes that there had been ‘non-textual copying’ of their software.

The UK High Court held that the provisions of EU and UK law providing copyright protection for software (the Software Directive) as a literary work did not extend to the ‘look and feel’ of computer programs, which represents an idea rather than the expression of the idea, these provisions being limited to protecting the underlying computer code. Unsurprisingly, since there was no suggestion that Easyjet had copied the OpenRes code, literary copyright in the OpenRes software was found not to have been infringed. However, the court found that a number of the GUI screens were protected as artistic works, as were the icons included in these screens (see Fig. 3), being, in the judge’s words, ‘plainly copyright works’. Easyjet were found to have copied these visual aspects and therefore infringed Navitaire’s copyright.

In addition to the finding that certain aspects of GUIs are protectable as artistic works, several other lessons can be taken from this case. Firstly, it is stipulated in the CDPA 1988 that copyright can only subsist in a work that has been recorded, for example, written down or documented in drawings or a sound recording. However, the GUI screens of the OpenRes software were solely recorded in the computer code that displayed them, and not in any other form. The judge considered the representation in code to be adequate for the protection of the screens as artistic works. Therefore, while it may be advisable to record GUIs as images and in design drawings, the underlying code of a GUI should be sufficient for it to attract copyright protection as an artistic work.

Another interesting point is that the GUI screens in question were composed of basic elements provided by an interface builder program, with Navitaire’s contribution being the arrangement of these elements. The judge found that arranging these basic elements represented sufficient skill and labour in order to entitle the screens to artistic copyright. Given that many GUIs are arrangements of such basic elements, it will be a relief to software developers that this aspect of GUIs is eligible for copyright protection.

In a later case, Bezpecnostni Softwarova Asociace v Ministerstvo Kultury C-393/09 (‘BSA’), the Court of Justice of the European Union (CJEU) also concluded that the provisions of EU law affording copyright protection to software code did not extend to the visual aspects of GUIs. The CJEU held that such visual aspects of GUIs may still be afforded copyright protection where the GUI is its ‘author’s own intellectual creation’, which is the continental approach to assessing whether a work is sufficiently original to merit copyright protection. Following from this, the CJEU further noted that any aspects of the GUI which are solely dictated by their technical function cannot be considered to be their ‘author’s own intellectual creation’ as they do not allow the ‘author’ to express their creativity in an original manner.

The explicit exclusion of elements dictated by technical function may make it more difficult to demonstrate the necessary creativity to merit copyright protection, although this depends on how technical function is defined. If technical function is defined broadly, e.g. as enabling interaction with a device for a particular purpose, then relatively few elements could be considered to be dictated by function, as many alternatives exist. However, if technical function is construed more narrowly, e.g. enabling users to interact with the device in the most intuitive way, then many more design choices could be considered to be dictated by function. The CJEU left it to the national courts to make this assessment, and, as of yet, there is little guidance from the UK courts or CJEU as to how ‘technical function’ in relation to GUIs should be interpreted.

So, what practical steps can be taken to increase the eligibility of a user interface for copyright protection? Keeping records of the design choices made during development of the GUI, and any alternatives considered, may be useful in demonstrating the creativity involved in the development and that they were not solely dictated by technical concerns. Documents relating to aesthetic considerations are likely to be particularly useful. In the often ad-hoc process of software development it may be difficult to maintain such records, but doing so could be helpful to securing copyright protection.