Is it lawful to copy the content of a website?

10 May 2010

Andrea Jarolímková, Vojtech Chloupek

A website copying case that has received wide publicity in the Czech Republic illustrates the importance of identifying the precise copyright work that is alleged to have been infringed and of producing the appropriate evidence to support the allegation.   

In 2000, the plaintiff created and then operated a website (www.gsmstore.cz) which was primarily intended for the sale of mobile phones. Besides other features, the website contained a list of mobile phones with photographs and descriptions of their technical specifications. About three years later, the defendant copied the depiction and specifications of mobile phones from the plaintiff's website (including some errors) and used it on his own website. In the infringement proceedings that followed, the plaintiff claimed that the website was protected by copyright as a computer program and asked for the payment of unjust enrichment corresponding to a licence fee which the defendant would have otherwise had to pay. The case went through three instances of the Czech court system reaching the highest, the Supreme Court of the Czech Republic. All courts involved reached the same conclusion.

Under Czech copyright law, a work qualifies for copyright protection only if it is the unique result of the creative activity of its author and is expressed in an objectively perceivable manner. There is a lesser standard for computer programs as it is sufficient for the computer program to be its author's own intellectual work. In other words, the computer program does not have to be the unique result of creative activity in order to attract copyright protection under Czech law; it is sufficient if it is an original work that derives from its author.

In this case, the plaintiff argued that the depiction of mobile phones together with specifications was protected either as a computer program or as some other work of authorship. However the court had to explain that only literal expression of the respective algorithm can be considered a computer program. Any visual or audiovisual depictions displayed on the monitor have to be strictly distinguished from the literal expression in the software code. Therefore, the pictures of mobile phones with the descriptions of their technical specifications contained on the website could not be considered as a computer program. The plaintiff did not submit any source code of the website to the court.

The court further considered whether the plaintiff's website could be protected as any other work of authorship and applied the “unique result of creative activity” test. The conclusion was that the mere depiction of mobile phones with their specifications provides only a very limited room for creativity. According to the court, the website presentation in question lacked both creativity and uniqueness and hence did not qualify for protection under Czech copyright law.

This decision was reported in the Czech media as meaning that it is lawful to copy a competitor's website. Interest from the public was increased by the refusal of the Czech Constitutional Court to hear the dispute because it lacked any constitutional dimension.  However the Czech courts did not give blank permission to copy any competitor's website. Quite the opposite, the courts provided a guideline for all those who will want to enforce copyright protection of a website. In order to be sufficient, plaintiffs will need to argue in particular that the (graphical) layout of a website is sufficiently original and creative. On the other hand, mundane depictions of a product together with readily available technical specifications will be very unlikely to attract copyright protection.  A plaintiff who wants to rely on copyright protection of a computer program will have to produce its code and demonstrate that the code has been copied.

 

Authors

Chloupek-Vojtech

Vojtech Chloupek

Partner
Czech Republic & Slovakia

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