Overview

Does copyright protection extend to software programs where functionality and 'look and feel' are reproduced, but there is no evidence of direct copying of underlying code? A recent judgment in the UK High Court has considered this point. Following the judgment, the position remains unsatisfactory for UK software developers and the software industry in general.

Copyright protection for software has been incorporated into English law from the European Software Directive (91/250/EEC) (the Software Directive). The court intends to make a reference (a request for assistance on interpretation) to the European Court of Justice (ECJ) in respect of several questions on the interpretation of the Software Directive.

The questions are to be formulated jointly among the claimants, the defendants and the court. The questions will relate to copyright protection and copyright infringement in discrete elements of software functionality (programming languages, interfaces and other functional aspects). It is likely to be several months before the ECJ will make its decision in this area.

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