LOOK AND FEEL HAS UK COPYRIGHT PROTECTION

COMPUTER AIDED DESIGN v BOLWELL "Look and Feel" is an expression familiar to those in the computer industry. It was coined in the USA. It is really a short hand description for the detailed steps that a computer program goes through in carrying out a particular function or series of functions. An alternative expression frequently used to describe the same thing is the "structure, sequence, and organisation" of a computer program. Sometimes "Look and Feel" is used to describe a computer program at a much more superficial level, as it would appear on the screen to a user. This article is about how the "Look and Feel" can be protected by copyright. In this context, it is "Look and Feel" at the deeper level not the superficial level which is relevant and important. The "Look and Feel" or "structure, sequence and organisation" of the program is contained in, and expressed by, the code (whether source or object) but must be distinguished from the lines of code themselves. In an analogous way, a food recipe is expressed in a particular language (for example English) and describes the steps to be taken in preparing the recipe. The steps to be taken are distinct from the words used. It is now clear in the UK that the lines of code are copyright works which can be protected. The High Court in the UK has this year in a case called Computer Aided Design v Bolweli decided that the Look and Feel of a computer program can be a copyright work and be protected by copyright law against unauthorised copying. Although this was a preliminary decision rather than a final decision it is nevertheless extremely important. The facts of the case are simple and, in my experience, now quite common in the software industry. The Plaintiff, Computer Aided Design, supplied both software and hardware. The software was known as BUSNIX-FLEET. Three employees including Bolwell left the Plaintiff to set up a rival business with a promise of work and financial help from one of the Plaintiff's customers who was dissatisfied with BUSNIX-

FLEET. The Defendants' wrote their software using a fourth generation language called PROGRESS. They called the product the "Towquest System." The Plaintiff alleged that the Towquest System infringed the copyright in BUSNIX-FLEET and had been produced misusing its confidential information. The Plaintiff applied for a temporary court order preventing the Defendants from marketing the Towquest System. The Plaintiff faced an increasingly familiar problem. By producing the Towquest System using PROGRESS, the code for the Towquest System was different from that of BUSNIX- FLEET. There was no claim that the code itself had been copied. Instead, the Plaintiff, alleged that the overall design structure and organisation of BUSNIX-FLEET had been substantially copied by the Defendants in producing the Towquest System. Most computer lawyers believe that a case on this basis would succeed. There are old cases to support this belief where the plot of a book or play has been copied but not the actual text. However, there was no decided case in the UK about computer software until now. I am not concerned for the purpose of this note in the claim made for misuse of confidential information. It is sensible, where possible, to include a claim for misuse of confidential information in these sort of cases along side the claim for infringement of copyright. There may also be claims for breach of contract, eg of an employment contract. The problem of protecting Look and Feel against unauthorised copying has (like many other problems affecting modern society) already arisen and been confronted by the courts in the United States. There, two schools of thought have developed. The first is that copyright gives broad protection both to the source and object code of the program and also to its structure, sequence and organisation. For example, see the cases of Whelan Associates Inc v Jaslow Dental Laboratory Inc [(1987) FSR I] and Digital communication Associates v Softklone Distributing Corp [g59E Supp. 449 (N.D.GA.1987)]. The second is that copyright

protection is limited just to the source or object code and does not extend to the structure, sequence or organisation of the program. This is because, so the argument goes, the latter represents the "idea" of the program rather than its "expression". It is now commonly understood that copyright only protects the "expression'! of an idea not the idea itself. Examples of these type of cases in the USA are Cotton Co- operative v Goodpasture Computer Service [807E2d 1256 5th Cir 1987] and Q-Co Industries, Inc v Hoffman [625ESupp.608 S.D.N.Y. 1985]. It is generally hoped that the first school of thought will predominate, otherwise once again copyright law will have failed to keep pace with the computer industry. The Judge in Computer Aided Design v Bolwell decided that, amongst other things, the overall structure of a computer program was a form of literary expression in which copyright could exist. The Judge expressly followed the American court in the case of Whelan Associates v Jaslow Dental Laboratory. The importance of this case is immediately apparent. It confirms the advice that most computer lawyers have been giving in the UK over recent years. It enables software houses to take action confidently against those producing "clones" of their products. Cloning is now so easy. Intimate knowledge of the particular program structure and code can be gained by employees working on it, by distributors, or by customers who have been allowed access to it. The structure will have been developed after laborious and costly analysis and testing. It represents a major investment by the software developer. Yet that structure can be taken and using a fourth generation language a program can be produced quickly which will be in a different language and, therefore, have a very different source code, yet function equally well. Such products can be offered at low prices since the time consuming and very expensive slog of analysiS, testing and programming involved in producing a modern software product, have been avoided. The original software developer cannot

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match these prices and stay in business since the price charged must contain an element to recover the substantial development costs. The Judge in that case was Mr Justice Hoffman. He is a respected Judge and other Judges who are not bound to follow his lead are likely to do so.~ It is always open to the Appeal Courts in a later case to say that this part of the Judge's decision is wrong as a general principal of law. I think that is most unlikely. In each case though, it will still be necessary to produce evidence to

show that in the particular case that the overall structure satisfied the normal requirements, such as originality, to be copyright work. Also, that there has been substantial copying of the particular program. The latter can be difficult but by no means impossible. At an early stage when seeking a temporary court order against further marketing it is only necessary to show that "arguably" there has been substantial copying. This is a necessary first step in obtaining such a temporary court order. The Plaintiff

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in Computer Aided Design v Bolwell failed to satisfy the Judge at this early stage of the case that the Towquest System was arguably a substantial copy of BUSNIX-FLEET. But contrast that with the case of M S Associates v Power [1980] FSR 242 where at a similar stage of that case, the court did find it arguable that there had been substantial copying.

John R H Sykes Computer Lawyer Dibb Lupton Broomhead & Prior

SUPPLIER OF OFFICE FACILITIES LIABLE IN CONTRACT AND TORT FOR THEFT LOSSES

GOULD v LOCAL LONDON BUSINESS CENTRES PLC (QBD) 29 March 1990 (unreported) A company supplying office facilities to a chartered accountant has been held liable for damages in contract and tort for the damage suffered by the plaintiff following theft of his computer and computer equipment from the office he occupied in the defendants' building. The plaintiff occupied a single room under an agreement that was carefully worded to avoid the suggestion of any landlord and tenant arrangement, it was perfectly plain that the plaintiff did not even have a permanent right to any particular office which he was in, which of course would not be the case were a tenancy in existence. The theft, that resulted in the action, took place when a thief gained access to the premises using a pass key, which was kept on the defendants' premises in a filing cabinet in the reception area. The nub of the plaintiff's case was that the defendants, in breach of their duties both in contract and in tort, failed to take proper care of that key. The plaintiff based his case in contract on the provisions of the Supply of Goods and Services Act 1982, Sections 12(1)and 13. 12(1)defines a contract for the supply of a service as, "a contract under which a person, the supplier, agrees to carry out a service" In clause 13 (a critical clause for present purposes), it states that 'in a contract for the supply of a service, where the supplier is acting in the course of a business, there is an implied terms that the supplier will carry out the service with reasonable care and skill'.

The plaintiff submitted that the contract with the defendant was for the supply of a service, namely office facilities, and that it was carried on by the supplier acting in the course of a business. The plaintiff also contended that there was an implied term that the supplier should carry out the service with reasonable care and skill. No such care had been taken, he argued, since this was a building where the defendants provided office services to a number of individual users, in which the means of access to each office, with a pass key, was retained, and in which there was a failure to take reasonable care of the pass keys, by leaving them in an easily visible and accessible filing cabinet, at a time when the reception area was not manned. The defendants argued that the 1982 Act was inapplicable since: 'a landlord and tenant type situation' existed, which meant that a landlord does not owe any duty of security to his tenants. The court rejected this, as it did the defence argument that there was no duty of care in tort. The defendants had relied on a Court of Appeal decision - P Perl (Exporters Ltd) v The Camden London Borough Council [1984] 1 QB 342, in which the plaintiffs suffered loss following an intrusion through adjoining premises which had a broken lock. In that case, the court rejected the suggestion that occupiers of property were under a duty to prevent persons entering their property who might thereby obtain access to neighbouring property. If that were so, the defendants would be responsible for someone else's wrong doing. In this case, the facts were different, since the thieves entered the premises

under the defendants' control, so that more care should have been taken. The necessary element of foreseeability was also present, since it was perfectly reasonable to expect a professional to have a computer on his premises, together with computerised records, by which the person maintained his business activities.

Damages The plaintiff's claim was not directed at the replacement costs of the stolen computer and associated equipment, since this was insured. What the plaintiff was seeking was recovery of his uninsured losses, namely the time it took to reprogram the computer and reinstate the records, and secondly the loss of a client who withdrew because his affairs were not being properly handled following the loss of the records. On count one, the court awarded £6821, being the loss of fees which the plaintiff could otherwise have earned during the time he spent reconstituting the computer records. For the loss of the client in question, the court awarded £13980, representing fees payable over one year for professional services. Although accountancy services were provided on a monthly basis, the court could not assume that the services would carry on forever - 12 months was a reasonable period.

The Report Comments This is one of the first cases where contractual and tortious liability has arisen over failure to provide adequate security for a building. Admittedly, this

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