Why the Graphical User Interface of a Computer Program Cannot be Protected by Copyright?

04/ 09/ 2019

Viktoriia Ostapchuk

Managing Partner of Synergy IP Law Agency; Trademark&Design Attorney of Ukraine, Attorney at Law. Specializing in intellectual property issues from IP objects registration to transactions support and protection of rights. She has extensive experience in the area of assets structuring and taxation of intellectual property transactions.

A computer program is a complex multicomponent product, each part of which must be properly protected. The Graphical User Interface (GUI) is a product wrapper that reflects its essence and allows the user to interact with it. That is why, the GUI, for sure, is one of the most important elements after a program code that needs special protection.

As it is known, a computer program in a source or an object code is efficiently protected by copyright as a literary work (as prescribed, in particular, by Article 180 of EU-Ukraine Association Agreement, Article 433 of the Civil Code of Ukraine). But regarding the GUI copyright protection is not a sure way. According to Article 180 of EU-Ukraine Association Agreement ideas and principles on which any element of a computer program is based, in particular those, on which the interface is based, are not protected by copyright.

Copyright provides protection only from the exact reproduction of individual elements of design but does not protect the conception itself. If you are planning to stand up for your rights to original elements of an interface (buttons, icons, pop-up windows, text etc.), copyright protection may be quite sufficient. Copyright is also appropriate for the protection of combinations of such original elements from exact copying. Therefore, copyright protection of an interface is rather limited that does not cover and does not protect from illegal reproduction, imitation of a general image, style of design – those that raise strong associations of the user with a particular program. Because individual elements may differ from the original ones but general effect will be reproduced.

The practice of recent years shows that, as of today, the most efficient way of the GUI protection is it’s patenting as a design (industrial design). Even if the duration of patent validity (from 10 up to 25 years) is significantly shorter than copyright protection (70 years after the death of the author), but the scope of protection of a design by a patent is broader. Moreover, because of the stormy development of technologies, the term of the validity of a patent for a design may be quite sufficient for performing its functions.

The limits of the effect of a patent for design are based on the claimed images of an interface that may include as a general view of design (for example, screenshots of the working displays), but also individual elements, colors, their combinations, placement etc. For instance, one of four patents of Apple Company, infringement of rights to which was the subject of a big case «Apple Inc vs. Samsung Electronics Co., LTD», US Patent #D604,305 for graphic user interface of iPhone includes 194 screenshots of the working displays. Whereas iPhone interface and the opposed interface of the phone of Samsung Company, as well as its individual elements were not identical, the fact of infringement was established. The infringement was in general substantial similarity that was caused by the use of similar elements of design: in particular, grid of icons, rounded edges of icons, combination of icons styles, the use of similar color scheme for icons that had the same purpose on both devices.

In order to obtain absolute protection of the GUI by a patent it is important to pay particular attention to the proper patent drafting. For the registration purposes it is necessary to claim such design images that completely reflect what should be protected from copying. Moreover, the essential features of the objects claimed for the registration should be described. The correct verbal characteristic will ensure stronger protection from imitation of design. The qualified experts in the sphere of intellectual property may assist in drafting an application for a design to obtain the most efficient protection.

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