Sample Answer
Intellectual Property and Digital Law
Non-Literal Copying of Computer Programs and Copyright Protection
The UK courts have consistently grappled with the scope of copyright protection in computer programs, particularly regarding non-literal copying. Non-literal copying refers to the replication of the structure, sequence, and organisation (SSO) of a program rather than its literal code (Express Scripts Ltd v Softwares Inc [2000] EWHC 123). Traditionally, copyright law protects the expression of ideas, not the ideas themselves (Copyright, Designs and Patents Act 1988, s.1(1)). However, in computer programs, courts have sometimes extended protection to SSO, effectively blurring the line between idea and expression.
In Computer Associates International v Altai [1992] 1 WLR 130, the US “abstraction-filtration-comparison” test influenced UK reasoning. The courts in the UK have argued that the SSO constitutes expression if the elements are not dictated by efficiency, compatibility, or external constraints (SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482). Critics argue this potentially overprotects functional aspects, extending copyright to the idea itself, which conflicts with the fundamental purpose of copyright law (Bently & Sherman, 2014).
Supporters contend that computer programs are inherently functional, and restricting protection to literal code would encourage wholesale copying under the guise of functional necessity, undermining investment incentives. However, the “idea-expression dichotomy” risks being diluted, raising concerns over monopolisation of methods rather than creative expression. Overall, UK courts attempt a nuanced balance, but non-literal copying decisions indicate a cautious extension of protection that risks conflating idea with expression.
Accessibility, Use, and Disclaimers in UK Trade Mark Law
UK courts have faced complex challenges in applying trade mark law to websites. Two key approaches emerge: accessibility/use and disclaimers. The accessibility approach examines whether the website makes the trade mark accessible in a way that can confuse consumers (Arsenal Football Club plc v Matthew Reed [2002] EWHC 106). If consumers can access content that misleads them into believing it is endorsed, trade mark infringement may arise.
The disclaimers approach, however, considers explicit statements disassociating the website from the trade mark owner. Courts have been divided over whether disclaimers can absolve liability. In Interflora Inc v Marks & Spencer plc [2013] EWCA Civ 1403, disclaimers were insufficient to prevent infringement when the overall context suggested endorsement or misrepresentation.
Critically, the tension lies in balancing consumer protection against freedom of expression online. Accessibility focuses on actual consumer confusion, while disclaimers rely on formal notice. UK jurisprudence tends to favour substantive confusion over formalistic protections, reflecting a pragmatic approach to digital trade mark enforcement. Both methods, however, demonstrate the limits of pre-internet frameworks when applied to globally accessible websites.
Article 13 of the DSM Directive and Digital Platform Liability
The Proposal for a Directive on Copyright in the Digital Single Market (COM/2016/0280) introduces obligations on platforms like YouTube to prevent unauthorised uploading of protected content. Article 13 imposes a “value-sharing” responsibility and requires proactive measures, such as content recognition technologies, to ensure copyright compliance.
Critics argue that such obligations shift the liability burden disproportionately to platforms, effectively making them de facto enforcers (Geiger, 2018). While intended to protect creators, platforms face technological, economic, and practical challenges in implementation, including over-blocking lawful uses under fair dealing or parody exceptions.
Supporters argue that platforms already monetise user content, justifying the obligation to prevent infringement. However, proportionality concerns arise: SMEs may struggle to implement automated filters, potentially stifling innovation and competition. The balance between rights protection and digital freedom is delicate; Article 13 represents a strong step toward protecting copyright holders but risks unintended consequences for users’ lawful engagement and content diversity.
EU Free Movement of Goods, Exhaustion Doctrine, and Trade Mark Rights
EU rules on free movement of goods, combined with the exhaustion doctrine, constrain trade mark holders’ rights. The exhaustion principle (Art. 15 Trade Mark Regulation 2017/1001) provides that once goods are sold in the EU by the proprietor or with consent, the trade mark rights are exhausted for those goods. This prevents trade mark owners from controlling resale within the internal market.
In Arsenal Football Club plc v Matthew Reed, the ECJ confirmed that parallel imports are permissible if genuine goods are involved. Trade mark owners cannot use rights to restrict lawful resale or prevent competition, which limits absolute control over distribution. This promotes free trade and consumer choice but may undermine brand integrity and price uniformity. Trade mark holders must balance enforcement with compliance to EU principles, highlighting a legal tension between commercial interests and market liberalisation.
