Copyright: subsistence and infringement in software

By Audrey Horton



The High Court has dismissed an application for summary judgment in relation to a claim for the infringement of copyright in software.


Computer programs, and preparatory design material for computer programs, are protected as literary works (section 3(1), Copyright, Designs and Patents Act 1988). However, the functionality of a computer program cannot be protected by copyright (SAS Institute Inc v World Programming Ltd, see News brief "Copyright protection for computer software: functionality loses out again",

For copyright to subsist, the intellectual creation of the author must be identified (Response Clothing Ltd v Edinburgh Woollen Mill Ltd,


O supplied D with hardware, software and IT support relating to digital signage, which was used to advertise in medical and dental surgeries.

O sued D for breach of contract, copyright infringement and breach of confidence. O alleged that D had copied the design of O's embedded product, which O argued was a single homogenous runtime image comprising Microsoft, third party and O's code. O also said that D1 had changed the password and gained unauthorised access to the embedded product, locked O out and unlawfully copied the design.

D argued that what O called the embedded product was a general purpose computer with a Windows XP operating system, that O owned no copyright in a Microsoft operating system and that copyright did not subsist in the design of the embedded product. D counterclaimed against O for breach of contract, procuring breach of contract and conspiracy to injure.

O applied for summary judgment on the claim for copyright infringement against D.


The court refused O's application.

Although O claimed that the relevant work was the single homogenous runtime image, that copyright subsisted in the design of the embedded product, and that it had been copied by D, it was not clear what was being referred to as the "design" of the product. Evidence from O's former employee, K, was that the embedded product had to be considered as a whole, including the runtime image's specific design and compilation of components. However, the pleaded claim did not rely on copyright subsisting as a compilation: it relied on the single homogenous runtime image. So, the pleading was unsatisfactory.

In relation to subsistence, K's evidence was that the design depended on skilled choices. However, this was a matter of opinion and K was also stating as a conclusion what the court had to decide. It was difficult for the court to evaluate this evidence without knowing what the other options were and how much intellectual creation there was in K's choices. Further evidence said nothing about intellectual creation but focused on commercial sensitivity and confidentiality. So there was a triable issue as to whether copyright subsisted in the work.

In relation to infringement, the question was whether D had copied what had conferred originality on the embedded product. That also required an assessment of what made it original in the first place. D's expert said that 70% of the product lacked originality. O argued that that was irrelevant. However, that brought the matter back to O's failure to identify exactly what the product's structure was and whether it had involved intellectual creation. There was also a significant dispute as to whether what O was really trying to protect was the functionality of its software, which was outside the scope of copyright protection. So there was also a triable issue on infringement.


This decision demonstrates the necessity for the particulars of claim to identify clearly the aspects of the software application in which copyright protection is claimed, and to define precisely how it is alleged to have been infringed. Where, as here, commercial software applications are adaptations of off-the-shelf software toolkits produced by suppliers such as Microsoft, it may be difficult to establish subsistence and infringement of copyright.

Case: Oysterware Ltd v Intentor Ltd and others [2020] EWHC 2125 (Ch).

First published in the October 2020 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.