APIs & Software Copyright In 2021 ' A View From Each Side Of The Pond

• Published date: 05 August 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Kemp IT Law
• Author: Mr Chris Kemp

1. 2021 - a Big Year for APIs & Software Copyright

The time is ripe to take stock of software interface copyright on each side of the Atlantic. The subject has graced the US Supreme Court twice so far this year. In April, the Court handed down its long-awaited opinion in Google v. Oracle, settling a decade-long API copyright dispute between two tech giants. In January, the Court rejected a certiorari petition in World Programming v. SAS Institute, another long-running, if less well known, interface copyright litigation.

2021 is also a significant year for interface copyright this side of the Pond, though rather more symbolically: in May, the first Software Directive - the instrument setting the terms of software copyright in the EU and the UK - celebrated its thirtieth birthday.

All the while, the importance of APIs is growing. API calls are now said to account for over 80% of all internet traffic¹ while the average app uses between 10 and 15 APIs².

This article reviews the recent US cases and contrasts them with the approach taken in the EU and the UK. It finds that the traditional fault line between the two regions - more copyright protection for APIs in the US versus more flexibility to achieve interoperability in the EU and the UK - is still alive and kicking.

2. Google Oracle - the US Position

Google v. Oracle is a well-worn path by now. So we will skip the detail³ and get directly to this year's key development: the US Supreme Court's decision. These two questions were put to the Court:

• First, were the elements of the Java API that Google copied capable of being protected by copyright?
• Second, if 'yes' to the first question, was Google's use of the Java API fair use?

The first question is often referred to as the 'copyrightability question'. In general terms, it asks whether copyright protection extends to a software interface. The second question is the 'fair use question'. Fair use is a statutory exception to copyright protection in the US.⁴ It involves balancing four 'fair use factors'⁵ specified in statute to reach a conclusion that a particular use of copyright material is not infringing. Fair use is fact-specific and tricky.⁶

The Court handed down its decision in April. In an unexpected move, it reserved judgment on copyrightability and found in Google's favour on fair use. Because it dodged one of the key questions of the litigation, this was seen as a surprisingly narrow holding.

The Court explained its reticence on copyrightability as follows:

Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties' dispute.⁷

In other words, this is an acknowledgment that interface copyrightability is a complex area, and a broad finding that could have unintended consequences is best avoided.

Moreover, the Court was divided. A firmly worded dissenting opinion criticised the majority view, concluding "[t]he Court wrongly sidesteps the principal question that we were asked to consider. Is [the Java API] protected by copyright? I would hold that it is."⁸

The practical takeaway from all this is that, even after a decade of litigation, in the US the extent to which interfaces are copyrightable is unclear.

3. The Software Directive - the EU/UK Position

In the EU and the UK the boundaries of software copyright have their origin in the...