Idée or Idée Fixe?
| Published date | 01 May 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02581.x |
| Date | 01 May 1987 |
| Author | Anne Staines |
368
THE
MODERN
LAW REVIEW
[Vol.
50
places upon potential
life
and personal autonomy. The House
of
Lords decision may contain a hint
of
things to come but it
recognises no legal rights in the foetus
qua
foetus and it may
therefore be premature to talk in terms
of
the rights
of
the unborn.
ANDREW BAINHAM*
IDBE
OR
IDBE FIXE?
COPYRIGHT
protects “works,” not ideas. When does an idea become
sufficiently developed to qualify as a “work” for copyright purposes?
This was the issue facing the United States Court
of
Appeals in
Whelan
v.
Jaslow.‘
The plaintiff wrote a computer program called “Dentalab,”
designed to facilitate the administration
of
dental laboratories. The
program was written in EDL’ for the IBM Series One computer.
The defendant produced a functionally identical program in BASIC
for the IBM
PC,
which because
of
the distinct programming
languages bore no direct
or
apparently derivative resemblance to
the literal codes
of
the EDL “Dentalab” program. At first in~tance,~
the plaintiff won her claim for copyright infringement on the
ground that the structure
of
her program (that is to say, the way
the program operates, controls and regulates the computer
in receiving, assembling, calculating, retaining, correlating and
producing useful information) was protected by copyright and that
that structure had been reproduced in the defendant’s program.
The expression
of
an idea, it was held, was protected4 even though
it must be altered and refined to be made adaptable to different
types
of
computers that have different methods
of
responding
to
command controls and therefore require different source codes.5
In application, the judgment appeared to owe more
to
the
United States law of unfair competition than
to
copyright. Of three
factors by which the judge professed himself influenced (expert
evidence
of
structural similarities between the programs, the almost
identical format
of
the visual screens, and the fact that the
defendant, a “talented but amateur programmer” lacked the ability
to create his program independently of the plaintiff’s) the
appearance
of
the screens seems to have held particular significance.
In effect, he defined as copyright-protected what the program did
rather than what the literal codes looked like, and then defined
what the program did according to what the screens looked like,
noting that prospective users and customers at trade shows had
found no substantial difference between the programs. This elision
*
Lecturer in Law, University
of
East Anglia.
I
Whelan Associates
Inc.
v.
Jaslow
Dental Laboratory
Inc.,
230
U.S.P.Q. (B.N.A.) 481
*
Event Driven Language.
(1986).
Whelati Associates
hie.
v.
Jaslow
Dental Laboratory
Inc.,
609
FSupp.
1307. (District
By 17 U.S.C.
89:
101, 117.
See
Apple Compurers
ltic.
v.
Franklin
Computer Corp. 714
F.
2d 1240 (3d
Cir.)
1983.
Ct. Pennsylvania).
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