Another nail in the coffin for non-literal software copyright infringement?

Abstract

This article reviews a 2014 decision of the New Zealand Court of Appeal in Karum v Fisher & Paykel Finance, where in considering a claim for non-literal infringement of software copyright the court adopted the reasoning of UK and US authorities. As with decisions in the UK and USA, no protectable expression was found, despite homage being paid to the applicability of non-literal infringement in software copyright cases. Assuming the latter concept has validity, ‘it is necessary essentially to retrace and map each of the designer's steps—in opposite order in which they were taken in the program's creation’ (Computer Associates v Altai 982 F 2d 693, 707 (2d Cir 1992)). In this article, software engineering is employed to reveal the abstractions above program code by closely examining the design steps in software development models and in particular the Waterfall model. The objective is to ascertain if there are any areas left where protectable expression may reside within the hierarchy of abstractions which have not so far been excluded by courts. In this analysis software development work products (which may constitute ‘preparatory design material’) are comprehensively identified as a possible alternative basis for bringing claims of copyright infringement where similarities exist only at higher levels of abstraction. UK, EU and New Zealand cases reveal very clearly the influence of US law in this field of copyright whether or not it has received specific acknowledgment. Through the Software Directive and the Court of Justice of the European Union (CJEU) the continental copyright tradition (Football Dataco Ltd v Yahoo Ltd, C-604/10, EU:C:2012:115, Opinion of A-G Mengozzi, paras 36–37) has now infiltrated traditional UK copyright concepts. However, this article argues that not only are the majority of the US tests still ‘irrelevant and exotic’ (H Laddie et al, The Modern Law of Copyright and Designs (2nd edn, Butterworths, 1995) para 20.58), but the application of the doctrine of non-literal infringement to software copyright (thought to be a ‘syllogism’ by the 2nd Circuit in Computer Associates v Altai) is a logical fallacy.