Wednesday Law Report: Computer-programs copyright infringement

5 May 1999 Cantor Fitzgerald International and another v Tradition (UK) Ltd and others Chancery Division (Mr Justice Pumfrey) 15 April 1999

THE COPYING of algorithms or sequences of operations from a computer program might be sufficient to amount to infringement of copyright in the program in the same way as the copying of the plot of a novel or a play might be so sufficient.

The court allowed in part a claim for infringement of copyright in certain computer programs which formed part of a bond-broking system, and for breach of confidence in relation to those programs.

The plaintiffs ("CFI") and the first and second defendants ("Tradition") carried on business as inter-dealer brokers ("IDB") in bonds in London. An IDB facilitated trading between clients who wished to sell or to purchase financial instruments.

Mr Howard, the third defendant, was effectively dismissed by CFI. On his dismissal he cast around for employment and met Mr Adler, who was effectively in control of Tradition. Mr Howard proposed that he should set up an IDB business for Tradition in London. He recruited Mr Harland, the fourth defendant, then head of the systems department at CFI.

Roger Wyand QC and Robert Onslow (Norton Rose) for the plaintiffs; Peter Prescott QC and James Mellor (Wilde Sapte) for the first, second and fourth defendants; George Hamer (Warner Cranston) for the third defendant.

Mr Justice Pumfrey said that copyright protection was conferred on computer programs as literary works. In Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, Jacob J had said that a claim in copyright was to be tested as follows: what was the work or works in which the plaintiff claimed copyright?; was each such work original?; had there been copying from that work?; and, if there had been copying, had a substantial part of that work been reproduced?

There was however, a real risk of making an error if the court adapted well-known principles which had been developed in the context of literary works addressed to humans, and applied them uncritically to literary works whose only purpose was to make a machine operate in a certain manner.

In the present case, the interrelationship of the originality of the work (the prerequisite for the subsistence of copyright) and substantiality of the part of the work copied (the prerequisite for infringement) was of considerable importance.

So far as English law was concerned the correct approach to substantiality was straightforward. It was the function of copyright to protect the relevant skill and labour expended by the author of the work. It followed that a copyist infringed if he appropriated a part of the work upon which a substantial part of the author's skill and labour had been expended.

The statement of principle in Catnic Components v Hill & Smith [1982] RPC 182, at 223, could not be applied directly to infringement of literary copyrights in general or literary copyrights subsisting in computer programs in particular, but it none the less reflected the approach the court considered appropriate.

In the general case, it was well established that a substantial part of the author's skill and labour resided in the plot of a novel or a play, and that to take that plot without taking any part of the particular manner of its expression might be sufficient to amount to copyright infringement.

The closest analogy to a plot in a computer program lay in the algorithms or sequences of operations decided on by the programmer to achieve his object. Moreover, it was generally accepted that the "architecture" of a computer program was capable of protection if a substantial part of the programmer's skill, labour and judgement had gone into it.

Applying that approach to the present case, the allegations of infringement of copyright and breach of confidence succeeded in part: the claims against Mr Howard and Mr Harland as joint tortfeasers succeeded, Tradition's claim for an indemnity against Mr Howard succeeded, and Mr Howard's claim for an indemnity failed.

Suggested Topics
Arts and Entertainment
Jamie Dornan as Christian Grey in Fifty Shades of Grey

film Sex scene trailer sees a shirtless Jamie Dornan turn up the heat

Arts and Entertainment
A sketch of Van Gogh has been discovered in the archives of Kunsthalle Bremen in Germany
arts + ents
Arts and Entertainment
Eleanor Catton has hit back after being accused of 'treachery' for criticising the government.
books
Arts and Entertainment
Fake Banksy stencil given to artist Alex Jakob-Whitworth

art

Arts and Entertainment
'The Archers' has an audience of about five million
radioA growing number of listeners are voicing their discontent; so loudly that even the BBC's director-general seems worried
PROMOTED VIDEO
Arts and Entertainment
Taylor Swift is heading to Norwich for Radio 1's Big Weekend

music
Arts and Entertainment
Beer as folk: Vincent Franklin and Cyril Nri (centre) in ‘Cucumber’
tvReview: This slice of gay life in Manchester has universal appeal
Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
Arts and Entertainment
‘A Day at the Races’ still stands up well today
film
Arts and Entertainment
‘The Royals’ – a ‘twisted, soapy take on England’s first family’
tvAnd its producers have already announced a second season...
Arts and Entertainment
Kraftwerk performing at the Neue Nationalgalerie (New National Gallery) museum in Berlin earlier this month
musicWhy a bunch of academics consider German electropoppers Kraftwerk worthy of their own symposium
Arts and Entertainment
Icelandic singer Bjork has been forced to release her album early after an online leak

music
Arts and Entertainment
Colin Firth as Harry Hart in Kingsman: The Secret Service

film
Arts and Entertainment
Brian Blessed as King Lear in the Guildford Shakespeare Company's performance of the play

theatre
Arts and Entertainment
In the picture: Anthony LaPaglia and Martin Freeman in 'The Eichmann Show'

tv
Arts and Entertainment
Anne Kirkbride and Bill Roache as Deirdre and Ken Barlow in Coronation Street

tvThe actress has died aged 60
Arts and Entertainment
Marianne Jean-Baptiste defends Joe Miller in Broadchurch series two

tv
Arts and Entertainment
The frill of it all: Hattie Morahan in 'The Changeling'

theatre
Arts and Entertainment
Gillian Anderson and David Duchovny may reunite for The X Files

tv
Arts and Entertainment
Jeremy Clarkson, left, and Richard Hammond upset the locals in South America
TV
News
A young woman punched a police officer after attending a gig by US rapper Snoop Dogg
people
Arts and Entertainment
Reese Witherspoon starring in 'Wild'

It's hard not to warm to Reese Witherspoon's heroismfilm
Arts and Entertainment
Word up: Robbie Coltrane as dictionary guru Doctor Johnson in the classic sitcom Blackadder the Third
books

Arts and Entertainment
The Oscar nominations are due to be announced today

Oscars 2015
Arts and Entertainment
Hacked off: Maisie Williams in ‘Cyberbully’

Maisie Williams single-handedly rises to the challenge

TV
Arts and Entertainment
Eddie Redmayne in The Theory of Everything and Benedict Cumberbatch in The Imitation Game are both nominated at the Bafta Film Awards
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Isis hostage crisis: The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power

    Isis hostage crisis

    The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power, says Robert Fisk
    Missing salvage expert who found $50m of sunken treasure before disappearing, tracked down at last

    The runaway buccaneers and the ship full of gold

    Salvage expert Tommy Thompson found sunken treasure worth millions. Then he vanished... until now
    Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

    Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

    Maverick artist Grayson Perry backs our campaign
    Assisted Dying Bill: I want to be able to decide about my own death - I want to have control of my life

    Assisted Dying Bill: 'I want control of my life'

    This week the Assisted Dying Bill is debated in the Lords. Virginia Ironside, who has already made plans for her own self-deliverance, argues that it's time we allowed people a humane, compassionate death
    Move over, kale - cabbage is the new rising star

    Cabbage is king again

    Sophie Morris banishes thoughts of soggy school dinners and turns over a new leaf
    11 best winter skin treats

    Give your moisturiser a helping hand: 11 best winter skin treats

    Get an extra boost of nourishment from one of these hard-working products
    Paul Scholes column: The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him

    Paul Scholes column

    The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him
    Frank Warren column: No cigar, but pots of money: here come the Cubans

    Frank Warren's Ringside

    No cigar, but pots of money: here come the Cubans
    Isis hostage crisis: Militant group stands strong as its numerous enemies fail to find a common plan to defeat it

    Isis stands strong as its numerous enemies fail to find a common plan to defeat it

    The jihadis are being squeezed militarily and economically, but there is no sign of an implosion, says Patrick Cockburn
    Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action

    Virtual reality: Seeing is believing

    Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action
    Homeless Veterans appeal: MP says Coalition ‘not doing enough’

    Homeless Veterans appeal

    MP says Coalition ‘not doing enough’ to help
    Larry David, Steve Coogan and other comedians share stories of depression in new documentary

    Comedians share stories of depression

    The director of the new documentary, Kevin Pollak, tells Jessica Barrett how he got them to talk
    Has The Archers lost the plot with it's spicy storylines?

    Has The Archers lost the plot?

    A growing number of listeners are voicing their discontent over the rural soap's spicy storylines; so loudly that even the BBC's director-general seems worried, says Simon Kelner
    English Heritage adds 14 post-war office buildings to its protected lists

    14 office buildings added to protected lists

    Christopher Beanland explores the underrated appeal of these palaces of pen-pushing
    Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

    Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

    Scientists unearthed the cranial fragments from Manot Cave in West Galilee