‘48. Since a date unknown to the Defendant, but prior to November 2023, the Claimant developed the Edozo Platform so as to offer the Edozo Reports Product. The Edozo Reports Product is offered to the Claimant’s customers from its website at <https://www.edozo.com> (the Edozo Website). As particularised below the Edozo Reports Product reproduces the sequence of dynamic logic and modularity whereby the user can generate the automated Edozo Reports. 49. The Defendant relies on the aspects of the dynamic logic and modularity of the Edozo Reports Product set out in Confidential Annex 6 to this Defence and Counterclaim. 50. The dynamic logic and modularity of the Edozo Reports Product reproduces a substantial part of the dynamic logic and modularity of the Valos Platform (as set out at Confidential Annex 1). The Defendant relies on the side-by-side comparison of the dynamic logic and modularity of the Edozo Reports Product and the Valos Platform as set out in Confidential Annex 7. 51. Further, the Edozo Reports Product was copied from the Valos Platform (including the Valos Reports and the Valos GUIs) and thereby indirectly copied from the Original Valos Computer Program and the Subsequent Valos Computer Programs (and each or any of them). The Defendant relies on the following facts and matters in support of its allegation of copying: (1) an ex-employee of the Claimant has admitted to the Defendant that the Claimant had access to the Valos Platform when developing its Edozo Reports product; (2) as of October 2023 or thereabouts the Valos Platform was the only platform for automating the creation of data-enriched valuation reports, in the premises it is inevitable that the Claimant sought to benchmark its new product by reference to the Valos Platform including the Valos Reports and the Valos GUIs; (3) the similarities between the Edozo Reports Product and the Valos Platform as set out in Confidential Annex 7; (4) the similarities between the Edozo Coded Prompts and the Valos Coded Prompts and the copying of the Edozo Coded Prompts from the Valos Coded Prompts as set out further below; (5) the similarities between the Edozo Reports and the Valos Reports and the copying of the Edozo Reports from the Valos Reports and the Valos Template Reports as set out further below; (6) the following comment in a demonstration video to prospective clients from an Edozo sales representative: “Obviously you’ve trialled Valos, and there is part of the platform that is very similar to what they do, but it’s worth noting our pricing covers more than just Reports…”; (7) at a meeting between the founders of the Claimant and the Defendant on24 September 2024 , the Claimant’s CEO, Mr Marcus Ginn, stated “we copied you” to Mr Kountourides and Mr Davis of the Defendant and made comments to the effect that the Claimant would not have executed the Edozo Reports Product the way it had if it had not seen the Valos Platform; (8) the similarities between the Edozo GUIs and the Valos GUIs and the copying of the Edozo GUIs from the Valos GUIs as set out further below; (9) in May 2023 Valos was informed by a client that Edozo intended to compete with the Valos Platform and to launch a product within 12 months. By October 2023 or thereabouts Edozo were promoting a product. The rapid timeframe to develop the Edozo Development GUI and launch the Edozo Reports Product is indicative of a springboard achieved by copying; and (10) a client of the Defendant saw a video in November 2023 of what the Defendant infers was the Edozo Reports Product and described it as “almost identical,” to the Valos Platform including the dataset structure, map integration, and user-driven flows. 52. In the premises, the Edozo Platform reproduces a substantial part and is therefore an Infringing Copy (within the meaning of section 27 of the CDPA) of the literary copyright subsisting in the Original Valos Computer Program and/or the Subsequent Valos Computer Programs (and each or any of them) (the Infringing Edozo Platform). 53. Further, the Infringing Edozo GUIs (as defined below) are generated from the Edozo Reports Product and/or the Edozo Platform and in the premises, the Infringing Edozo GUIs (and each of them) reproduce a substantial part of the literary copyright subsisting in the Original Valos Computer Program and/or the Subsequent Valos Computer Programs (and each or any of them).’
‘[34] … Copyright, of course, does not subsist in mere ideas, but in their expression. That proposition is a well-established one in English law, and is now also to be found in a number of international treaties and EU Directives: see art.9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”) and art.2 of the WIPO Copyright Treaty. The ideas/expression dichotomy has, however, been described as “notoriously slippery”: see Simone, Copyright and Collective Authorship (Cambridge University Press, 2019), at p.41. A mere idea, stripped of any context, is of course not the subject of copyright. Jacob J put it in this way in IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] F.S.R. 275 at p.291: “The true position is that where an ‘idea’ is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the ‘idea’ is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the ‘idea’) of a novel or play can certainly infringe – if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between ‘idea’ and ‘expression’): ‘Nobody has been able to fix that boundary and nobody ever can’.”’
‘[5] There is here an issue of general importance. To emulate the action of a piece of software by the writing of other software that has no internal similarity to the first but is deliberately designed to “look” the same and achieve the same results is far from uncommon. If Navitaire are right in their most far-reaching submission, much of such work may amount to the infringement of copyright in the original computer program, even if the alleged infringer had no access to the source code for it and did not investigate or decompile the executable program.’
‘[125] This does not answer the question with which I am confronted, which is peculiar, I believe, to computer programs. The reason it is a new problem is that two completely different computer programs can produce an identical result: not a result identical at some level of abstraction but identical at any level of abstraction. This is so even if the author of one has no access at all to the other but only to its results. The analogy with a plot is for this reason a poor one. It is a poor one for other reasons as well. To say these programs possess a plot is precisely like saying that the book of instructions for a booking clerk acting manually has a plot: but a book of instructions has no theme, no events, and does not have a narrative flow. Nor does a computer program, particularly one whose behaviour depends upon the history of its inputs in any given transaction. It does not have a plot, merely a series of pre-defined operations intended to achieve the desired result in response to the requests of the customer.’
‘[127] … Take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and, thereafter, his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no.’
‘[38] Our domestic legislation confines the doing of a restricted act (e.g. copying) to doing that act in relation to the work as a whole or any “substantial part of it”:Copyright Designs and Patents Act 1988 s.16 (1) , s.16 (3), Nova Productions Ltd v Mazooma Games Ltd[2007] EWCA Civ 219 , [2007] R.P.C. 25 at [29]. It has long been the position in domestic law that what is substantial is a question to be answered qualitatively rather than quantitatively. In Infopaq [Infopaq International A/S v Danske Dagblades Forening (C-5/08)[2009] ECR I-6569 ] the court said that parts of a work are entitled to the same protection as the work as a whole. But the parts in question must “contain elements which are the expression of the intellectual creation of the author of the work”: [39]. This is now the test for determining whether a restricted act has been done in relation to a substantial part of a work. Both counsel agreed that to interpret s.16 (3) in this way was consistent with the court's duty to interpret domestic legislation, so far as possible, so as to conform with European directives. I do not think that anything in the decisions of this court in Nova Productions Ltd v Mazooma Games Ltd and The Newspaper Licensing Agency v Meltwater Holding BV[2011] EWCA Civ 890 , [2012] R.P.C. 1 casts doubt on that proposition.’
‘[129] The questions in the present case are both a lack of substantiality and the nature of the skill and labour to be protected. Navitaire's computer program invites input in a manner excluded from copyright protection, outputs its results in a form excluded from copyright protection and creates a record of a reservation in the name of a particular passenger on a particular flight. What is left when the interface aspects of the case are disregarded is the business function of carrying out the transaction and creating the record, because none of the code was read or copied by the defendants. It is right that those responsible for devising OpenRes envisaged this as the end result for their program: but that is not relevant skill and labour. In my judgment, this claim for non-textual copying should fail. [130] I do not come to this conclusion with any regret. If it is the policy of the Software Directive to exclude both computer languages and the underlying ideas of the interfaces from protection, then it should not be possible to circumvent these exclusions by seeking to identify some overall function or functions that it is the sole purpose of the interface to invoke and relying on those instead. As a matter of policy also, it seems to me that to permit the “business logic” of a program to attract protection through the literary copyright afforded to the program itself is an unjustifiable extension of copyright protection into a field where I am far from satisfied that it is appropriate.’
‘[48] Mr Howe attacked that. I quote his skeleton argument: “this analogy is a poor one. The reason is that the first chef has deployed two quite distinct types of skill and labour. The first is the skill of devising a recipe, a skill which on no view forms part of the skill and labour protected by copyright in literary works. The second is skill and labour in reducing the recipe he has devised to written form. A copyist who copies from his pudding rather than from his recipe book may appropriate the former skill and labour but none of the latter. By contrast, a copyist who copies the function of a computer program to write his own program to achieve the same results is clearly appropriating part of the skill and labour expended in designing the program.” [49] He further developed the argument basing himself on recital 7 of the Directive. This says: “‘computer program’ … also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage”. He asked us to suppose a case where there are two clear stages in the making of a program—a first stage where the designer sets out all the things he wants the program to be able do and a second stage (which may be by a different person) where the actual program code is written. Mr Howe contended that the first stage was intended to be protected as such, even if it consisted only of ideas as to what the program should do. Going back to the analogy, the “preparatory work” for the program is like the skill of devising the recipe and the actual program writing like the reduction of the recipe to written form. The difference, he submitted, is that for computer programs, unlike the recipe, the preparatory work is to be protected. [50] I reject the argument. The reason is simple. The Directive does not say that mere ideas by way of preparatory design work are to be protected. As I have said it makes it clear that for computer programs as a whole (which includes their preparatory design work) ideas are not to be protected. What is protected by way of preparatory design work is that work as a literary work—the expression of the design which are to go into the ultimate program, not the ideas themselves. [51] So for example, if Mr Jones had actually written a description of the pulsing, rotating cue, and synchronised power meter his description would (if not too trivial at least) be protected as a literary work. People could not copy that. But they could use the same idea. Similarly and more generally, a written work consisting of a specification of the functions of an intended computer program will attract protection as a literary work. But the functions themselves do not. Of course to someone familiar with the prior English law it is self-evident that copyright could subsist in such a description. The fact that a work can get copyright even if mundane, is old and familiar to an English lawyer. But the Directive needed to say that protection as a literary work should be provided for preparatory design work because not all Member States under their existing laws necessarily provided that. That is the whole point of the Directive—and the clear reason for it is recited in Art.1 . [52] So I think Mr Howe's attack on Navitaire fails. The reasoning in Navitaire provides a second reason for dismissing this appeal. Pumfrey J. was quite right to say that merely making a program which will emulate another but which in no way involves copying the program code or any of the program's graphics is legitimate.’
‘[1] The underlying issue in this case is the extent to which the developer of a computer program may lawfully replicate the functions of an existing computer program; and the materials that he may lawfully use for that purpose.’
‘[13] Nor is there any dispute that the intellectual effort involved in creating each of the SAS Components included both (i) intellectual effort in determining the requirements for the software and (ii) intellectual effort in designing and writing source code to implement those requirements. The first of these will have involved making choices about what the SAS components would do.’
‘[62] The essence of this claim is that in writing WPS in the Java programming language (and subsequently in C++) WPL has copied the SAS Manuals. This argument seems at first sight to be counter-intuitive, because the SAS Manuals themselves do not contain any programming language. They describe the functions that the program is to perform. [63] Following the judgment of the CJEU the question remaining for the judge was whether the reproduction in WPS of elements described in the SAS Manuals constituted the reproduction of the expression of the intellectual creation of the author of the user manual. It is important to stress that it is only the intellectual creation of the author of the user manual that counts. The intellectual creation of the author of a different work (e.g. the computer program itself) is not relevant to this question. In addition, and perhaps more importantly, for the purposes of copyright what is relevant is not the intellectual creation itself, but the expression of the intellectual creation of the author of the manual: Infopaq at [39]; CJEU in our case at [65] and [68]. The functionality of a computer program is, quite simply, not a form of expression at all.’
‘[70] It is also the case that the European legislation was enacted against the background of many international treaties and well-established principles of copyright law, and that the relevant directives must be interpreted against that background: Infopaq at [32]. One of these principles is that for an infringement of copyright to exist, the defendant's work must represent the claimant's work in some real sense. This is an embedded feature of copyright law.’
‘[72] Copinger & Skone James on Copyright (17th edn) explain the principle thus at para.7-37: “It has already been pointed out that in general terms a work is not reproduced unless what has been produced represents the work in some real sense. A description in a novel of a scene from nature is thus not infringed by a drawing made to depict that scene. So, in the context of a literary work, the copyright in a book which described a method of teaching mathematics was not infringed by making a series of coloured rods which demonstrated that method, the copyright in written instructions for the making of a garment was not infringed by making the garment, and the copyright in the words and numerals in knitting guides was not infringed by making garments to those instructions. Again the copyright in a book of recipes would not be infringed by making a dish according to one of the recipes.”’
‘[74] … the judgment of the CJEU [has], to some extent, changed the question. What is protected is the form of expression of an intellectual creation. The intellectual creation itself is not protected; and the functionality of a computer program does not count as a form of expression. The functionality of a computer program (in the sense of what it does and how it responds to particular inputs) falls on the ideas side of the line. It falls on that side of the line whether one is considering the Software Directive or the Information Society Directive. … the copying that SAS Institute alleged was not the copying of the form of expression of an intellectual creation, … In short, what WPL took was not capable of protection by copyright.’
‘[85] … in so far as the WPS manual described the WPS program, which had been created from observation of the functionality of SAS and its description in the SAS Manuals, it is exactly analogous to the writing by the second chef of his successful recipe, which does not infringe copyright in the first chef's recipe.’