In the early days, a basic principle was laid down by the Supreme Court in the case of Baker v.

Selden1 where, copyright protection is available only for a particular expression of an idea, not for the idea itself. The law was precisely adopted in FisherPrice Inc. v. Well-Made Toy Mfg Corp,2 where the plaintiff must show that defendant had taken the expression of idea formed by the plaintiff by not merely expressing same idea. In the computer software area, the case of Lotus Development Corp. v. Borland International Inc. 3 held that the Menu command structure of Lotus 1-2-3 was an unprotected method of operation by relying to 17 U.S.C4 and S.102(b) of the United States Copyright Act 1976.5 The court was in the view that it would be absurd if menu hierarchies were copyrightable since users would be required to learn how to perform the same operation in a different way for every program. Further establishing the copyright protection of computer software, the next fundamental issue would be on whether there would be infringement of copyright if the alleged infringer did not copy the code completely but had taken something less specific. Therefore, in order to tackling this issue, the "look and feel" test was established in the case of Whelan Associates6 whereby the question arose was whether there could be copyright infringement in copying the "overall structure" of a program even if there was no copying of object code or source code. The court applied the concept of look and feel test, contrasting and comparing the 2 programs. It was concluded that the detailed structure of a program was part of the expression of an idea rather than an idea itself hence upheld the decision for copyright infringement. The "Abstraction, Filtration, and Comparison"(A-F-C) Test was further developed in the case of Computer Associates International Inc v. Altai Inc. 7 The court stated its analysis by providing that non-literal structures of computer programs must be protected analogously in compatible with other literary works. At the abstraction level, computer program is classified to be its entirety set of instructions which further produce ultimate function. At the filtration level, the object is separated out from protectable elements of the expression to non-protectable material. The final step of comparison is to compare what remains with the alleged infringement. Therefore, in order establish the test of A-F-C, the substantial parts of the computer programs are
1 2

101 US 99 (1879) 25 F.3d 119, 30 USPQ2d 1954 (2nd Cir. 1994) 3 516 U.S. 233 (1996) 4 Title 17 of the United States Code 5 S.102(b): It requires that "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 6 230 U.S.P.Q. 481 (3rd Circuit 1986); The facts: The case was one where the alleged infringement was a rewrite of a program written in one computer language in a different language.
7

23 U.S.P.Q. 2d 1241 (1992)

extracted and compared. As per Loff Hoffman in the case of Designers Guild Ltd v Russell Williams (Textiles) Ltd,8 "copyright protects foxes better than hedgehogs when there is a considerable amount of skill and labour being applied. Thus, even though there was a mere copying of non-literal structures of computer programs, so long as substantial effort of labor and skill was involved, the conversion of a particular function on one type of hardware to another software by fulfilling the same function on different hardware, it would still allege to infringement. In essence, it upholds the principle of Lord Hoffman where copyright is meant to protect detailed expression better than one single expression.

Bibliography: Ladas & Parry Guide to Statutory Protection for Computer Software in the United States, Copyright Protection for Computer Software <http://www.ladas.com/Patents/Computer/Copyright.USA.html> accessed on 20th July 2013 Parliament UK, Judgments - Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc) < http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd001123/design-2.htm> accessed on 20th July 2013 Software Freedom Law Center, Originality Requirements under U.S. and E.U. Copyright Law(27 September 2007) < http://softwarefreedom.org/resources/2007/originality-requirements.html> accessed on 20th July 2013

[2001] FSR 113 at para 26