Court of Appeal Rules Software Graphics Qualify as Artistic Works in Copyright Dispute

Citation: [2023] EWCA Civ 1354
Judgment on

Introduction

In the case of THJ Systems Limited & Anor v Daniel Sheridan & Anor [2023] EWCA Civ 1354, the Court of Appeal (Civil Division) examined issues surrounding copyright in computer software interfaces and infringement claims. The case analyses what constitutes artistic work within the ambit of copyright law and assesses whether the graphic user interface and certain images generated by a software program can be protected as “artistic works.” Additionally, the case addresses procedural aspects regarding admissions of infringement and the consequences of late-raised legal arguments (ambushing) in litigation.

Key Facts

The dispute involves THJ Systems Limited (Claimant) and Daniel Sheridan (Defendant) over the software OptionNET Explorer. Andrew Mitchell, aligned with the Claimant, sought to expel the Defendant from their business partnership and claimed copyright infringement regarding the use of the software’s graphical user interface post the expiry of a licensing agreement. The central issue of contention at the appeal was (1) whether the graphic displays such as risk and price charts produced by the software qualify as original artistic works, and consequently, (2) whether these works were infringed by the Defendant after the license termination.

Original Artistic Works

The case primarily centered around the test of originality for a work to qualify for copyright protection under section 1(1)(a) of the Copyright, Designs and Patents Act 1988, read in a manner harmonized with Article 2(a) of the Information Society Directive. The Court of Justice of the European Union (CJEU) has defined originality as the author’s own intellectual creation, requiring that the author made free and creative choices that stamp the work with their ‘personal touch’. Technical considerations, rules, or other constraints that leave no room for creative freedom, would not satisfy this criterion.

Admissions of Infringement

The case also delves into the concept of admission of infringement within civil procedural law. An admission once made, especially when it informs subsequent case management decisions, carries significant weight. Changing positions or introducing new issues without proper procedural steps can be deemed an ambush, which is generally disallowed.

Communication to the Public

An aspect of infringement that arose was whether the work was communicated to the public in the UK. This requires the party alleging infringement to demonstrate that the act of communication, such as publishing online, was targeted at the UK audience.

Outcomes

The appeal court concluded, despite the original judgement using a deprecated ‘skill and labour’ test instead of the ‘author’s own intellectual creation’ test, that the graphic displays produced by the software did contain elements of the author’s personal choices and could thus be protected as original artistic works under copyright law.

Furthermore, it was held that the Defendants’ admission regarding copyright infringement, if proven, was binding and could not be contested anew at the appeal stage given it was not part of the pleaded case nor properly raised through trial procedures.

Conclusion

The case reaffirms the significance of the originality test for establishing copyright protection for software graphics under UK law and aligns the same with the EU’s harmonized framework. It underscores the importance of definitive admissions in legal proceedings and serves as a caution against attempts to re-litigate or introduce new arguments late in the process. The Court’s strict adherence to these legal principles ensures clarity and predictability in the application of copyright laws whilst preserving the integrity of the judicial process.