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High Court examines the issue of source code copyright
The case of Visusoft Limited v Robert Harris and ARH Software Solutions Ltd concerned copyright. This dispute concerned copyright in a computer programme and software developed by the first named defendant, Mr. Harris, during his employment with the plaintiff, Visusoft. Visusoft claimed that software subsequently developed by Mr. Harris, called Risc 7, was a copy of the software developed for them during his employment (known as Datapos). The copyright in Datapos was owned by Visusoft.
In deciding whether there was an infringement of copyright the High Court applied the approach of Jacob J. in Ibcos Computers Ltd. v Barclays Mercantile Highland Finance Ltd as follows:
- What are the work or works in which the plaintiff claims copyright?
- Is such work original?
- Was there copying from the work?
- If there was copying, has a substantial part of that work been reproduced?
The High Court found, on the basis of expert evidence, that there was similarity between Risc 7 and Datapos and some degree of copying had taken place. There was a particular focus on the similarities between the source code for the two programmes. The case then turned on the question of substantiality i.e. did the work copied by Mr. Harris constitute a substantial part of Datapos as a whole.
Section 32(3) of the Copyright and Related Rights Act 2000 refers to an act restricted by copyright in work as relating to the work as a whole or to any substantial part of the work. Substantial is not defined in the Act and is, accordingly, a matter of fact. The High Court heard evidence from experts which ranged from Risc 7 containing 90% of Datapos compared to it containing merely 8%. It was held that the copied elements of Datapos in Risc 7 did not constitute a substantial part of Risc 7 either in the dictionary meaning of the word or in the case law definition.
However, it was held that Mr. Harris was in breach of contract. The High Court found evidence that Mr. Harris had retained a copy of Datapos and possibly the source code of Datapos. This was held to be in breach of the agreements governing his employment with Visusoft. It was also in breach of an undertaking given by Mr. Harris in a letter to Visusoft following termination of his employment wherein he stated that he no longer held any copies of the source code or the components whatsoever.