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INTELLECTUAL PROPERTY “GRAPHICAL USER INTERFACE”– IS IT COPYRIGHTABLE?

Author: Riya Agarwal, IV year of B.A.LL.B (Hons.) from SSLG, Jaipur National University



Abstract

“I don’t want to use my creative energy on somebody else’s user interface”, said Jeff Bezos. Graphical User Interface is a creative expression of originator which facilitates the user and device interaction. It shall thereby be guarded under the suitable statute which could be the Copyright Act. The act has a provision which includes computer programs considering literal and non-literal elements. While looking over the past instances it could be determined how some of the work was recognized and provided registration while others dismissed. The court needs to interpret the provisions and induce the proper guidelines. It will kill two birds with one stone, considering both the user and the originator will have profited from the same. It will encourage the originator to bring new ideas to the market. GUI is a scent worn by an application to attract its users. It is simplicity and efficiency are the essences of the current IT market. To maintain the elegance, originality shall not be lost.

Keywords: GUI, copyright, work, user, protection.


Introduction

Graphical User Interface” (GUI) acquired its genesis from the period of “Xerox Alto”, a first computer system developed in 1979 consist of the first GUI ever made. GUI is an interface on screen in the form of icons, folders, dialogue box and more on electronic devices such as mobile phones, computer, laptop, ATM’s etc. to interact with the software via hardware of the operating system. With the advancement of technology, complexity, accuracy and efficiency of GUI is acquiring its place in the new software and applications.“It is important to understand that GUIs are the visual aspects of the applications, and not the underlying code (i.e., “source code” and “object code”). For example, from the moment a user executes a command to the time the computer performs the desired functions, multiple layers of interaction occur within a software”.[1]But the GUI is the visual appearance on screen and not the underlying process.


Since the period it first came into existence, a dispute over its rights and legitimacy has been in question. After Apple considered it’s share in exchange for GUI from Xerox Corporation in 20thcentury, GUI was gaining acknowledgement in the market. In 1994, Apple had filed a suit against Microsoft for copyright infringement to which federal court held that there is no such right available at the period quoting, “patent- like protection for the idea of the graphical user interface, or the idea of the desktop metaphor was not available”[2]. But they did provide the petitioner right over ‘Trash can icon’ while Microsoft consequently started using ‘recycling bin’.


With the upcoming trend of e-commerce, the situation is quite different, society and law are evolving simultaneously and both are quite dependent on each other. As per 35th session of WIPO Standing Committee on the “Law of Trademarks, Industrial Designs and Geographical Indications”, 2016 a questionnaire was prepared on “Graphical User Interface (GUI), Icon and Typeface/Type Font Designs” according to which GUI is protected under Copyright Act 1957 and in certain cases under Design Act, 2000 as ‘designs’.


Copyright is provided to the creators of artistic, dramatic, musical, literary, producers of films and sound recordings. This right is provided to the author of original work along with the rights of selling, publication, distribution and more. Literary work defined under Section 2(o) of the Copyright Act, 1957 includes “computer programs, tables and compilations including computer databases”. Section 2(ffc) was introduced in 1994, which included “a set of instructions expressed in words, codes or any other form, including a machine-readable medium, capable of using a computer to perform a particular task or achieve a particular result”. Computer Programs (computer software) is protected under the definition of literary work under the copyright act, 1957. It includes copying literal codes as well the non-literal elements, expressing the form of ideas.


With the never-ending discussion on GUI being protected under the copyright Act or not, once again a matter in need of a proper solution is in the news. Zoom and Jio meet app conflict the issue of Graphic User Interface being copied by the latter. It’s expected that the matter will move towards the court to seek justice with the appropriate remedy.


GUI, Is it Copyrightable?

As per the Copyright Act, 1957 GUI (computer software) does include under the definition of “literary work”. Thereby, theoretically, it is protected under the act imbibing both the literal and non-literal elements. Literal programs/codes infringement can be easily dealt with but when the concern is for non-literal i.e. GUI design features/structure it’s controversial and much more complex. A conflict between GUI being better secured under the Copyright Act or design Act is an understatement.


In Maraekat Infotech Ltd. v. Nilesh Kothari[3], the suit was filed for infringement of copyright in software. Plaintiff claimed that the defendant had copied it’s software. While analyzing the similarities, Bombay High Court stated that they do not doubt the matter of infringement of copyright in software considered not merely literal similarity but also the similarity in programme structure and design features. The copyright protection of computer programs is said to extend beyond the programme ‘literal code’ and to their ‘structure, sequence and organization’. Thereby, it was established that copying the design features of a software/ computer programme can be considered a ground for copyright infringement. The same will be protected under the copyright act.


To protect the non-literal elements Indian courts found the ‘stage test’ in Altai case approachable. Computer Associates v. Altai Case[4], In this case, the American court developed a three-stage test called ‘Abstraction- Filtration and Comparison’, to check infringement.


According to the Ministry of Electronics and Information Technology, “Copyright protects the form of expression and can be used to protect source code and the object code of a computer programme. Furthermore, the computer programme is protected as a literary work by the Indian Copyright Act and hence, the look and feel of Graphical User Interface (GUI) can be protected under the Copyrights”.[5]


As per the above-mentioned sources GUI can be protected under the Copyright Act if proven ‘expression’ in form of the non-literal element. But it is undeniable that in various cases registration of GUI is granted under Design Act while others were refused for not being under the ambit of the definition under ‘designs’ and ‘article’ mentioned under section 2 of Design Act periodically. In India, the statute protecting Graphical User Interface is not quite definite. There is no precedent or judgement held by the judiciary to establish GUI non-literal elements such as design features or structures under the umbrella of protection of copyright act even though the same might be mentioned as overstatement under Maraekat case, enforceability is still vague.


It is essential to protect the GUI, an intellectual property from being exploited to keep the enthusiasm of makers on the right foot. With the passing period, GUI is advanced and simple to keep it user friendly. But that does not mean the world has the right to copy and exploit it. It is still an expression of the idea and the originator shall be provided registration rights to enhance its proper protection under the law. The Apex Court in Bharat Glass Tube Limited v. Gopal Glass Works Ltd[6], stated the essence to “protect the original person who has designed a new one under his efforts by researching for a long time”.


Zoom v. Jio Meet App, Is Copyright Act Applicable?

During the lockdown, Zoom (US-based firm) had become one of the most downloaded apps in India for education and conference purposes. It’s simple GUI has attracted a lot of users across the globe belonging to all the sectors. “According to the Sensor Tower report, Zoom has been installed on around 6 Million Indian Smartphones out of the total 80 Million installs worldwide during the first 3 months of 2020”.[7] News of data encryption and hacking activities made the users conscious about their privacy and confidentiality. While the ‘Zoom’ was working over its security problems, the upcoming app by Reliance Telecom became the talk of the town. As expected, Reliance Jio (Indian based) company had also launched their app in the market providing free video conferencing called “Jio meet app’. The dispute arose between the two when it was found that both the apps have the same interface. Zoom decided to approach the court for legal remedy. Due to the lack of registration of Zoom’s Graphical User Interface, the case will be fought on ‘expression of the idea’ under the Copyright Act. Since Zoom came before Jio Meet app it is more likely to win the case on the ground. “Jio Meet like Zoom supports HD audio and video conferencing calls, scheduling meetings, adding up to 100 participants and screen sharing”[8].


By analyzing both the apps it is excerpted that except for the fonts, no time limit on video calling and colour combinations the app has the same structure as the Zoom app. Even though it’s not something which hasn’t happened before, but unlike ‘Jio meet’ the resemblance has never been a blatant replica. Such an act will encourage other companies to exploit the existing interface to earn more profit. Copying an ‘expression of the idea’ with slight changes can lead to violation of copyright law. Since the copyright can be challenged irrespective of different nationalities, ‘Zoom’ is soon expected to approach the rightful authority to deal with the matter.


Conclusion

Graphical User Interface is what appears on the user’s screen while operating electronic devices. In India, GUI an intellectual property is protected under the copyright act as well as design act, theoretically. But there is no definite guideline upon its practical usage. GUI is an ‘expression of the idea’ in the form of designs and structures, a part of non -literal elements of the computer program which shall be protected under the Copyright Act. Since the period it came into existence, uncertainty over its registration, recognition of rights and protection over infringement is still looming.


The Copyright Act can provide the originator, right over his work for over 60 years of his life and 60 years after his death. GUI is an essence of upcoming technology, to attract users and investors. According to the ICC report[9], “GUI shall be protected under the Design Act”.Following the footsteps of other countries (USA, Brazil, China etc.) but unlike those India has a provision in copyright act as well design act thereby can find a midway. India can have a hybrid provision for the protection of ‘GUI originator’ considering the presence of provisions in both the statutes. Following the recent news of Zoom v. Jio meet app, initiation of legal action can be heard anytime. Jio meet is alleged to have copied the GUI of Zoom which is solely evident. This case will remove the veil of uncertainty upon the practical aspect of provisions applicable to GUI. The stake of expectations from the Judiciary will be very high as the case will be a landmark judgment pulling away from the curtains of uncertainty and ambiguity.


Reference

[1]Rachel Stigler, ‘Ooey GUI: The Messy Protection of Graphical User Interfaces’ (2014) 12(3) Northwestern Journal Of Technology And Intellectual Property

<https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1223&context=njtip> (accessed 10 Nov 2020)

[2] https://multimediaman.blog/2014/06/20/genesis-of-the-gui/ (Last visited on 12 Nov 2020)

[3]Maraekat Infotech Ltd. v. Naylesh Kothari, 2016 SCC Online Bom. 2369

[4] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992);

<available at: https://corporate.cyrilamarchandblogs.com/2020/02/legal-protection-of-software-in-india/#_ftnref5> (Last Visited on 12 Nov 2020)

[5] https://www.meity.gov.in/content/copyright (Last Visited on 15 Nov 2020)

[6]Bharat Glass Tube Limited v. Gopal Glass Works Ltd, 2008 (37) PTC 1(SC)

[7]https://lawsisto.com/legalnewsread/NjUzNQ==/Legal-Action-to-be-taken-by-Zoom-against-Jio-Meet-for-Copying-UI (Last visited on 18 Nov 2020)

[8] Resham Mehta, “Jio Meet versus Zoom”, Copyrights, Intellectual Property at Baskaran And Associates on 26th July 2020; available at http://baskaranslegal.com/blog/2020/07/26/jiomeet-versus-zoom/ (Last Visited on 17 Nov 2020)

[9]https://cdn.iccwbo.org/content/uploads/sites/3/2018/04/icc-report-on-design-protection-for-guis.pdf (Last Visited on 17 Nov 2020)