Application refused as there were triable issues on subsistence and infringement.
The High Court has refused summary judgment in the case of Oysterware Ltd v Intentor Ltd and others  EWHC 2125 (Ch).
The claimant Oysterware brought the action. It supplied the first defendant Intentor with hardware, software and IT support relating to digital signage.
Oysterware brought claims against the defendants for breach of contract, copyright infringement, breach of confidence and as against the second and third defendants, joint tortfeasorship and procuring breach of contract. Intentor counterclaimed for breach of contract, procuring breach of contract and conspiracy to injure.
The application in these proceedings related to only copyright infringement. Oysterware alleged that Intentor had copied the design of the claimant's “Embedded Product” (a single homogenous runtime image (as distinct from an operating system) comprising Microsoft code, third party code (eg applications and drivers) and Oysterware's code. Oysterware said that Intentor had changed the password and gained unauthorised access to the product, locked the claimant out and unlawfully copied the design. The defendants said that what the claimant called the Embedded Product was a general purpose computer with a Windows XP operating system. Further, they argued that the claimant owned no copyright in a Microsoft operating system and there was no copyright in the design of the Embedded Product.
Oysterware sought summary judgment.
The court refused the application, finding that there were triable issues on both subsistence and infringement.
It considered the principles in the CPRs for summary judgment and also considered that under the Copyright Designs and Patents Act 1988, computer programs were protected as literary works, as was preparatory design. However, the functionality of a computer program could not be protected by copyright. There was also some argument over the expert evidence which is not dealt with in this report as little turned on it.
The first issue was what the relevant work was and whether copyright subsisted in that work. Oysterware had provided no specific evidence regarding design and whether it amounted to intellectual creation, and had only provided opinion evidence. There was a triable issue with regards to subsistence.
In relation to infringement, the court considered if the defendants had copied what had conferred originality on the Embedded Product. That also required an assessment of what made the product original in the first place. The defendants' expert had said that 70% of the product lacked originality (which the claimant said was irrelevant). However, the claimant had failed to identify exactly what the product's structure was and if it had involved intellectual creation. The parties also had a significant dispute about whether the claimant was really actually trying to protect the functionality of its software, which is not protected by copyright law. As a result, there was a triable issue on infringement.