Furley Page: Website Copyright: What's protected and what's not?

When easyJet set about commissioning a new website user interface for its ticket-less internet booking service, doubtless it did not expect to find itself defending hefty copyright infringement proceedings. The system that easyJet commissioned and subsequently implemented from BulletProof Technologies (eRes) bore considerable similarity to the OpenRes system that it had formerly operated under licence from Navitaire Inc, so much so that Navitaire brought proceedings for breach of copyright.

There were a number of allegations covering infringement of intellectual property rights and breach of licensing terms. On the whole the allegations of infringement of copyright in the usual sense were relatively minor. The radical aspect of the case was that the thrust of the litigation was in the allegations of 'non-textual' copying in the application as a whole. The judge commented on the fact that even Navitaire had encountered difficulties in framing its claim and conveying what it meant by 'non-textual copying'. However Navitaire settled on the application's 'business logic', meaning its method or manner of response, function and look and feel, essentially what it did and the way it did it. Incidental to that, Navitaire methodically attacked the various elements of the application; the graphical user interface screens, the character screens, each of the individual commands for the new system and collections of commands as 'compilations'. The elements were challenged on the more conventional grounds of breach of artistic and literary copyright. The judgment (with commercially sensitive information removed) runs to some 111 pages and this article is far from a detailed treatment of the case, however of special interest to non-lawyers will be the lack of protection for what is referred to as the 'general business logic' of an application and the apparent legitimacy of 'non-textual copying'.