Copyright protection is quite common scenario in technology disputes. The reason is that software, specifically a computer code, is protected by copyright as a literary work in most jurisdictions. Since software is often a core of modern technology, copyright issues arise inevitably.
One of the exemplary cases of successful copyright protection of software in Ukraine is case Finik.Pro LLC vs. JSC Alfa Bank.
Finik.Pro LLC is a Ukrainian FinTech products developer. One of the Finik.Pro’s main products is the internet and mobile banking platform (hereinafter – “Platform”). Finik.Pro granted Alfa Bank a non-exclusive license to use the Platform and entered into an agreement on the individualization of the Platform (creation of new functionality) for the specific needs of the bank.
The subject matter of the dispute was unauthorized use of one of Finik.Pro`s software developments which Alfa bank exploited and made it available for customers in its Internet banking program for desktop computers, as well as in the mobile banking application for smartphones and tablets. Finik.Pro stated that since Alfa bank refused to accept the works re developments of the software and refused to pay therefor it did not acquire the right to use the software code (new functionality) created by Finik.Pro during the respective period.
The stakes were quite high because except for prohibition to use the software, Finik.Pro also claimed a multimillion compensation.
The tech side of the dispute was to prove that the use of particular code resulted into certain functionality of the software that was exploited by the defendant`s computer program and the mobile phone application. Resolving the technical issue was impossible without a specific expert knowledge and skills necessary to opine on complex tech matters, inter alia, on correlation of program functionality and source code, identity of tasks and functionality of computer programs, reproduction of a computer program, etc.
The expert found that the software code created by Finik.Pro fully corresponds to the functionality of the defendant’s commercial software solution, which confirms the illegal use by the bank of the copyright object – a computer program belonging to Finik.Pro.
The litigation ended in a confidential amicable settlement. This case is an excellent example of dependence of a court action on technical findings.
Key legal issues to consider in similar cases for software protection:
Strong claim on an owned copyright is a must. It is essential to ensure that the copyright ownership will not be challenged during the proceedings. Therefore, the copyright holder must pay attention to the appropriate acquisition of rights from employees, contractors etc.
Evidence of infringement of rights to the program code (in full or in part). Copyright holder should be prepared that the opponent would deny the infringement, and the dispute can turn into a side-by-side battle for literally each line of code.
Findings of an expert depend on the questions addressed thereto. Only an excellent understanding of the client’s product allows the attorney to put the most appropriate questions to confirm the infringement.