Hi,
I have recently read a few articles about the upcoming Windows 8 and it's metro design and I was wondering one thing:
Is this metro design that Microsoft developed copyrighted ?
(Can an interface design style be copyrighted ?)
Can another company use a similar design for it's applications ?
I am curious about this and am looking forward to some opinions.
Thank you.
Is the metro design developed by Microsoft copyrighted ?
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flashgroove
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Hi Flashgroove,
The subject you have raised is a good example of how the law (the Copyright Designs and Patents Act) written in 1988 struggles to deal with today's technology. Whilst there have been several other pieces of legislation based on EU directives which have tried to keep the legislation up to date with changing technology, in the main, the law we have today arises from decisions made by the various courts. The subject is further complicated by the fact that some (but not all) software can be patented. The rules on what is eligible for patent protection, as opposed to copyright, varies between the different jurisdictions but this is nevertheless a useful route by which the big technology companies try to protect their intellectual property from exploitation by their rivals. There are dozens of patent battles going on at present over mobile phone technology*. Since Metro is called a design language (and various other buzz words) it is possible to argue that some aspects of it could be protected by Registered Design Right, although I am not sure if Microsoft have actually followed this route. And finally, as Metro uses a specific typeface there may be additional protection for this apsect.
So having set the scene, let's look at your specific questions.
When you speak about the 'metro design' you have to realise this is actually two different things. First the software that causes Metro to run is undoubtedly a computer program within the meaning of s3 of the CDPA so it is protected by copyright. Secondly there is the User Interface itself which will almost certainly be treated as a graphic work under s4 of the Act. This is less obvious from the wording of s4, but I base my conclusion on the finding in a case known as Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24, in which Mr Justice Kitchin said (at paragraph 104 of his judgment) that the graphics shown on the screen were indeed graphic works within the meaning of the CDPA. I mentioned the typeface earlier. The Registered Designs Act 1949 includes typefaces in s1 and the CDPA also makes specific reference to typefaces in ss54 and 55 of that Act. So in answer to your first question, taking all these various factors into account, I think the answer is 'yes'.
Can the style be copied? Here life gets more difficult because it depends on the amount to which the original code or graphics is copied. The idea of icons which you touch or click on to activate other apps or programs has been around for a very long time, pre-dating Microsoft Windows and even Apple's first graphical user interface (Finder). Indeed it is hard to imagine any sort of computer interface which did not use them (well of course there are video recorders and older mobile phones with their text menus!). So the idea of graphical links is so commonplace that copying that is not really a problem, but actually using the same graphics might very well be a problem. Similarly using the same typeface as Metro will increase the chances that Microsoft could claim that the look and feel of their interface has been copied more for the sake of copying than for any functional reasons. Several years ago there was a dispute between Microdsoft and Apple over the use of a wastepaper basket (or 'trash can') symbol to represent the recycle bin on their respective systems, which Apple won, so even today Microsoft's icon for this function differs considerably from Apple's and those used in the various flavours of Linux, although the underlying process is the same. So in answer to your second question, I think the answer is a rather unsatisfacory 'it depends'.
Your third question is really the same as question two. Yes, another company probably could use a similar style of presentation (or indeed functionality) but it should not in any way copy Microsoft's actual code or the specific graphical symbols. I have no actual first hand knowledge of Windows 8 Metro, so I can't really comment on the extent to which it differs functionally from other interfaces such as Windows 7 Aero, iOS or Android etc.
Just to wrap up my comments, it is worth quoting from Lord Justice Jacob (now Professor Sir Robin Jacob) when the case I cited above (Mazooma games) went to the Court of Appeal:
The subject you have raised is a good example of how the law (the Copyright Designs and Patents Act) written in 1988 struggles to deal with today's technology. Whilst there have been several other pieces of legislation based on EU directives which have tried to keep the legislation up to date with changing technology, in the main, the law we have today arises from decisions made by the various courts. The subject is further complicated by the fact that some (but not all) software can be patented. The rules on what is eligible for patent protection, as opposed to copyright, varies between the different jurisdictions but this is nevertheless a useful route by which the big technology companies try to protect their intellectual property from exploitation by their rivals. There are dozens of patent battles going on at present over mobile phone technology*. Since Metro is called a design language (and various other buzz words) it is possible to argue that some aspects of it could be protected by Registered Design Right, although I am not sure if Microsoft have actually followed this route. And finally, as Metro uses a specific typeface there may be additional protection for this apsect.
So having set the scene, let's look at your specific questions.
When you speak about the 'metro design' you have to realise this is actually two different things. First the software that causes Metro to run is undoubtedly a computer program within the meaning of s3 of the CDPA so it is protected by copyright. Secondly there is the User Interface itself which will almost certainly be treated as a graphic work under s4 of the Act. This is less obvious from the wording of s4, but I base my conclusion on the finding in a case known as Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24, in which Mr Justice Kitchin said (at paragraph 104 of his judgment) that the graphics shown on the screen were indeed graphic works within the meaning of the CDPA. I mentioned the typeface earlier. The Registered Designs Act 1949 includes typefaces in s1 and the CDPA also makes specific reference to typefaces in ss54 and 55 of that Act. So in answer to your first question, taking all these various factors into account, I think the answer is 'yes'.
Can the style be copied? Here life gets more difficult because it depends on the amount to which the original code or graphics is copied. The idea of icons which you touch or click on to activate other apps or programs has been around for a very long time, pre-dating Microsoft Windows and even Apple's first graphical user interface (Finder). Indeed it is hard to imagine any sort of computer interface which did not use them (well of course there are video recorders and older mobile phones with their text menus!). So the idea of graphical links is so commonplace that copying that is not really a problem, but actually using the same graphics might very well be a problem. Similarly using the same typeface as Metro will increase the chances that Microsoft could claim that the look and feel of their interface has been copied more for the sake of copying than for any functional reasons. Several years ago there was a dispute between Microdsoft and Apple over the use of a wastepaper basket (or 'trash can') symbol to represent the recycle bin on their respective systems, which Apple won, so even today Microsoft's icon for this function differs considerably from Apple's and those used in the various flavours of Linux, although the underlying process is the same. So in answer to your second question, I think the answer is a rather unsatisfacory 'it depends'.
Your third question is really the same as question two. Yes, another company probably could use a similar style of presentation (or indeed functionality) but it should not in any way copy Microsoft's actual code or the specific graphical symbols. I have no actual first hand knowledge of Windows 8 Metro, so I can't really comment on the extent to which it differs functionally from other interfaces such as Windows 7 Aero, iOS or Android etc.
Just to wrap up my comments, it is worth quoting from Lord Justice Jacob (now Professor Sir Robin Jacob) when the case I cited above (Mazooma games) went to the Court of Appeal:
*for an idea of some past cases see: here, here and here"Mr Carr [counsel for Mazooma] submitted that not all things are covered by copyright, that most if not every work is, to some extent, influenced or derived from other works. So it is very important that copyright is not allowed to intervene to stifle the creation of works that are actually very different, as the individual games are here.
I agree with Mr Carr. If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves."
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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flashgroove
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