Phone Manufacturer 1 V. Phone Manufacturer 2:

Analysis on Copyright Infringement

Analysis by – Adv. Sushant Chaturvedi

K&T Law Offices

In a case where both the phones (one  manufactured by Phone Manufacturer 1 (“1”) and the other by Phone Manufacturer 2 (“2”)) operate on the Android OS, can a question of Intellectual Property Infringement arise?

Let us hypothetically say that the entire look and feel of 1’s menu & camera interfaces as well as various application icons has been copied by 2.

It is to be noted that Computer Programmes fall within the scope of literary works as defined under Section 2 (1) (o) of the Copyright Act 1957 (hereinafter “the Act”). Further, the individual application icons constitute ‘artistic works’ as defined under Section 2 (1) (c) of the Act. In order for copyright to subsist in literary and artistic works, the same must be original as per Section 13 (1)(a) of the Act. Accordingly, if 1 is to claim copyright protection in its menu & camera interfaces and in the application icons, they must satisfy the threshold of originality under Section 13 (1) (a) which is reproduced hereunder for your ready reference:

“13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;”

We note that various Android Application Packages (“APKs”) are under open source licenses i.e. they are in the public domain and all third parties are free to use the binary/source codes therein.

In order to determine, 2’s infringement of 1’s copyright, the following factors must be fulfilled prior to the actual comparison of the two works:-

Merger Doctrine must not be applicable[1]

When there is only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression. Under these circumstances, the expression is said to have merged with the idea itself. In order to not confer a monopoly of the idea upon the copyright owner, such expression should not be protected. Ex: if for some tasks like designing a User Interface for an Android based Operating System only a limited number of file structures are available, then in such cases, those structures might not be copyrightable.

External Factors must not be at play[2]

In many instances, it is virtually impossible to write a program to perform particular functions in a specific computing environment without employing standard techniques. Ex: adaptation of a particular user interface based on an Android Operating System could be a standardized practice common to trade. This is a result of extrinsic considerations such as:

• The mechanical specifications on which a particular program is supposed to run
• The compatibility requirements of other programs with which a program is designed to operate in conjunction
• Computer manufactured design standards
• Demands of the industry being serviced

Widely accepted programming practices within the industry

Elements must not be taken from Public Domain[3]

Closely related to the non-protectability is material found in public domain. Such material is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work. Ex: open source licensed applications used on Android phones

In light of the aforesaid and in order to fully understand the scope of 1’s rights in the Graphical User Interface, the following clarifications have to be taken:

1. Are 1’s menu and camera Interfaces new/original or are they modifications to pre existing codes?
2. Which particular components in 1’s interfaces are subject to open source licenses? If yes, what is the nature of such licenses?
3. Kindly identify the specific application icons in 1’s phone for which 2 has rights to exclusive use and according to 1 have been copied.
4. Has 1 independently created the application icons that it seeks to claim copyright in or are they modifications of icons that have been pre-existing in the public domain?
5. Is 1 an exclusive licensee of the background screen image?

Comparison

It is after determining the aforementioned factors that the test to determine whether similarities result from protectable expressions, dissection of similarities may be performed.  The following issues[4] will be taken up after determination of legally protectable expressions:

1. Applying tests to determine whether the expressions used by 2 are substantially similar or virtually identical to their equivalents in 1’s work?
2. Does the presence of the elements found to be substantially similar or virtually identical significantly alter the works in suit as a whole?
3. If the answer to (2) is yes, are the infringing works by 2, viewed as a whole substantially similar to the 1’s work?

OR

If the answer to (2) is no, are infringing works by 1, viewed as a whole, virtually identical to the copyrighted work?

Various judgments by INDIAN AND FOREIGN COURTS support our claims:

UNMISTAKABLE IMPRESSION

In Eastern Book Company and R.G. Anand[5], the court stated:

“If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there, it would amount to violation of the copyright. The Supreme Court held in R.G. Anand (supra) that one of the surest and the safest test to determine whether, or not, there has been a violation of a copyright is to see if the reader, spectator or the viewer after having read or seen both the works, is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.”

Supreme Court in R.G. Anand Vs. Delux Films & Others[6], and in particular on paragraph 46 thereof, wherein the Supreme Court culled out several legal propositions after examining a host of case laws. The said paragraph reads as follows:

“46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:

1. ….violation of the copyrightin such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.”

SUBSTANTIAL REPRODUCTION AMOUNTS TO INFRINGEMENT

In Daily Calendar,  Supplying Bureau v. The United Concern[7], the court stated:

“For the purpose of infringement of copyright, an exact reproduction of substantial part or copy is not necessary. What is essential is to see whether there is a reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. One useful test, which has been followed in several decisions of courts, is the one laid down by Lord Herschel, LC, in Banfstaengl v. Baines & Co [8]:

‘…it depends really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it, or at least of its design.’

There might be and there will be obvious differences deliberately introduced to avoid a possible charge of infringement. A bad copy does not cease to be a copy. If the court, on a consideration of all the relevant circumstances and a comparison of the plaintiff’s picture and the infringing picture comes to the conclusion that the defendant’s picture was consciously copied from the work of the plaintiff, that would be sufficient to hold that copyright is infringed.”

 

THE WHELAN APPROACH

In the Whelan Case[9], the Third Circuit became the First Circuit Court of appeals to answer whether the underlying structure of a computer program was copyrightable:

“The Dentcom Program did not copy the object code or the source code i.e. literal elements of the program. However, most of the file structures and screen outputs of the programs were virtually identical. In addition, five key subroutines performed virtually, identically and there were overall structural similarities. On appeal, the only issue before the court was whether the Dentcom program infringed upon the copyright of the Dentalab system by copying non literal elements of the program.”

 After reiterating the discussion between idea and expression, the court developed a test, purportedly based on Baker v. Selden[10] for distinguishing idea from expression in computer programs:

“The line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question. In other words, the purpose or function of a utilitarian work would be the works idea and everything that is not necessary to that purpose or function would be part of the expression of the idea.”

The court went on to apply this principle very broadly:

“It is clear that the structure of the program was not essential to the task: there are some other programs on the market that perform the same functions but have different structures. The conclusion is thus inescapable that the detailed structure of the program is part of the expression, not the idea of that program.”

The court upheld the lower court’s findings of substantial similarity and announced a new rule that would extend copyright protection beyond a program’s literal elements[11] to its non literal elements[12]. It is has been observed in Whelan’s case that developing a good user interface is often considered the most difficult and important part of programming. This is because the user interface determines how easy the program is to use, which is in turn a major factor in determining whether people will want to use this program or a competing one.

It has thus been held that the structure of the program, the look and feel of it constitute expressions protectable under the Copyright Act. An observational test of the above-mentioned points along-with a careful analysis of literal and non literal elements that go into making of a device / its interface must be done in order to determine rights in it.

_______________________________

[1] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992. (Pg 14)

[2] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992. (Pg 17)

[3] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992. (Pg 16)

[4] Apple Computer Inc. Vs Microsoft Corp 1993 (Pg 10)

[5] AIR 1978 SC 1613

[6]  MANU/SC/0256/1978  : PTC (Suppl) (1) 802 (SC)

[7] AIR 1967 Mad 381

[8] 1895 AC 20

[9] Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. (3rd Cir. 1986)

[10] Baker v. Selden, 101 U.S. 99 (1879

[11] Source code; Object Code; Operating system

[12 Look & feel; User Interface etc