April 3, 2017

The claimant, Noel Starbuck, alleged that he had written a number of versions of a suite of computer software called Networked Systems Architecture (NSA), and that he owned the copyright subsisting in NSA version 3.1 in particular. His claim was that this copyright had been infringed by the defendant, Patsystems (UK) Ltd.

Patsystems argued that it owned the copyright in NSA version 3.1 by virtue of an assignment entered into between the parties on 29 June 1999. Mr Starbuck admitted that in this 1999 Assignment he did assign to Patsystems title to some versions of NSA, but disputed that he had assigned title in NSA version 3.1. Patsystems accepted that if Mr Starbuck did own the copyright in NSA version 3.1, it had indeed infringed his copyright.

Patsystems also counterclaimed that, if it did own the copyright in NSA version 3.1, then Mr Starbuck has infringed this copyright by using the NSA version 3.1 software to create and use new software known as ACE.

The question of which party owned the copyright in NSA version 3.1 was a question of contractual interpretation and, in particular, whether the definition of “Software” in the Assignment covered all versions of the NSA software or just the early ones.

Under the 1999 Assignment, “Software” was defined as “the software programs known as ‘NSA’ or ‘Networked Systems Architecture’ in source code form identified by title and description in the Schedule.”

Following the Supreme Court decision in Arnold v Britton [2015] UKSC 36, which said that, while commercial common sense is an important factor to take into account, a court should be very slow to reject the natural meaning of a provision, the court found that the Assignment covered all versions of the NSA software. Accordingly, Patsystems did indeed own the copyright in NSA version 3.1 pursuant to the Assignment.

As for whether Mr Starbuck had infringed the copyright in NSA 3.1 through the use of the ACE software, the court noted that the question for the court was whether the ACE software reproduced “the expression of the intellectual creation of” the author of NSA version 3.1 (see SAS Institute v World Programming [2013] EWCA Civ 1482). According to that judgment functionality of a computer program was clearly not protected by copyright, nor were keywords, syntax, commands and combinations of commands, options, defaults and iterations.

Examining the evidence, the judge found that it was insufficient to show infringement. Essentially, Patsystems had failed to prove that the ACE software had reproduced the expression of the intellectual creation of NSA version 3.1. (Noel Starbuck v Patsystems (UK) Ltd [2017] EWHC 397 (IPEC) (8 March 2017) — to read the judgment in full, click here).