Infringement of software copyright: what is the benchmark?

A lot of money is invested in the development of software. If another party offers virtually identical software, the developer naturally wants to be able to take action against it. Attorney Hidde Reitsma discusses a recent judgment which revolved around copyright on software.

Do the programs infringe copyright?

These proceedings relate to the software of claimant VGB which consists of four programs, namely the program eBenefits 4.8 and the partial applications EblPro, Mutatiemanager and Offertemanager. The judge was asked to consider the question posed by the lawyer whether the ‘eBenefits’ software offered for sale by the respondent, i.e. eBenefits Portaal, Pensioen Portaal and eBenefits Compass, were adaptations of the software of VGB and whether the publication and/or reproduction of that software represented an infringement of VGB’s copyright.

Software must comply with European Software Directive

The judge first noted that computer programs are explicitly named in the Copyright Act as works which can qualify for copyright protection. Computer programs were added to that provision in order to comply with the European Software Directive. The European Court of Justice has explained that the object of the protection afforded to computer programs by this directive relates to the ‘means of expression’, in whichever form, of a computer program, such as the source and object code, which makes it possible to reproduce the computer program in different computer languages.

Program’s graphical interface doesn’t count

The graphical user interface does not represent a means of expression of a computer program, since it cannot be used to reproduce the computer program in different computer languages. Neither do the functionality of a computer program, the programming language and the configuration of the data files used within a computer program in order to utilise its functions form a means of expression of a computer program in the sense of the Software Directive. The elements of a computer program, which do not represent a means of expression of that program can, however, qualify for copyright protection if they fulfil the criterion that the work has its own, original character and bears the personal stamp of the maker.

Expert compares software

That the software eBenefits 4.8, including Mutatiemanager, is a work protected by copyright is not in dispute between the parties. The judge subsequently ordered an expert report. The expert compared the software eBenefits 4.8 including Mutatiemanager with the software eBenefits Portaal (not with Pensioen Portaal and eBenefits Compass) and found that 83 out of a total of 4410 unique source files occur in identical form in eBenefits Portaal.

No infringement of copyright

However, the judge came to the judgment that their copying by eBenefits does not amount to publishing the work or part of it, or at least to the reproduction of a work or an adaptation that should not be regarded as a new original work. In the judge’s view, VGB had not claimed that, and on which grounds, the 83 source code files individually or severally contain the originality of the complete work within themselves; or that in principle the relevant source code files form the expression of the maker’s own intellectual creation. In view of their small number, it was also not self-evident that the 83 source code file should contain within them the originality of the computer program.

Access to source code files irrelevant

That eBenefits had access to the source code files of eBenefits 4.8 including Mutatiemanager when developing eBenefits Portaal was also not a circumstance that ought to lead to a different judgment. What needed to be judged was whether the reproduction of elements amounted to reproducing the expression of the individual intellectual creation of the author of the work. This would be no different if the supposed infringer had access to the source code files.

Specialist in intellectual property law in software

In the absence of a more detailed case to support a similarity between the software Pensioen Portaal and eBenefits Compass, the court rejects the claim by the lawyer that this represents an infringement of VGB’s copyright. In a previous interim judgment, the court had already ruled that eBenefits had never offered the partial application Offertemanager. The judge had also already ruled that eBenefits had infringed VGB’s copyright on the partial application EblPro. The prohibition on infringement and the details supplied with regard to the copyright infringement relating to EblPro were therefore upheld. Because eBenefits had infringed the disclosure order in a previous judgment in interlocutory proceedings, the maximum penalty of 500,000 euros was also imposed.