Intellectual Property Overlaps: Theory, strategies and solutions by Robert Tomkowicz

Author:Robert Tomkowicz
Language: eng
Format: epub
ISBN: 9781136637865
Publisher: Routledge

Consequently, copying of the visual interface for use in another program would, in Court’s view, amount to copyright infringement.

Unfortunately, the description of the technology involved in the creation of screen displays provided by the Ontario Superior Court in Delrina OC may no longer be accurate. While the early computer programs used to contain designs of screen displays in the software ’s code, modern software tends to generate visual interfaces as a result of mechanical interactions between operating systems and application software, which may lead to different conclusions on copyrightability of computer visual interfaces.

Computers use two kinds of software: operating systems and application software. An operating system manages internal resources of a computer. Among other things, it contains sets of operating instructions, which physically control the display of information on the computer screen. Modern operating systems are graphics based – they use pictorial features to control various processing functions, such as windows, pulldown menus, high-lighted areas, and icons. An operating system is normally sold with the computer itself. Application software, on the other hand, performs specific functions designed by a programmer, but is usually sold separately. Application software is also a source of design features on the display screen. In modern software, the final visual product – the computer screen – is the effect of the interaction of application software and operating system software and their various features, each of them doing independent formatting of the data before the display is created.

The mechanical creation of modern visual interfaces through interaction of different software can undermine the conclusion on copyrightability of screen displays reached by the Ontario Superior Court in Delrina OC. What happens in reality is that a user of the computer initiates interaction between the application software and the operating system software, where the application software uses small programs called subroutines to activate functions of the operating system in creating the display. Different application programs will use the same graphic features of the operating system, therefore the displays they will generate may be quite similar, but the final visual product is made by joined action of two computer programs using both sets of data files, which are usually authored and owned by different owners. This result leads to a question about authorship of the visual interface so created, which is really the question about originality of the work.

Copyright law provides protection for original works only. While the tests for originality differ from jurisdiction to jurisdiction, the differences are rather insignificant for the purpose of this analysis. According to the US Supreme Court, the standard of creativity for originality of copyright work is very low and will be satisfied as long as there is some ‘creative spark, “no matter how crude, humble or obvious” it might be.’421 In Commonwealth jurisdictions, the standard is even lower. As explained by the Supreme Court of Canada in the CCH case, copyright work ‘need not be creative, in the sense of being novel or unique’, it must only be created through ‘exercise of skill and

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