The recent decision in the case of Ibcos Computers Limited v. Barclay's Mercantile Highland Finance Limited, although following an earlier decision finding copyright protection for computer software in the United Kingdom, is of interest for two reasons: 1) it is the first judgment in this area by Mr. Justice Jacob, who as Robin Jacob QC before his elevation to the bench was the leader of the Intellectual Property Bar in England, and 2) it discusses the applicability of United States case law to the question of protection in the United Kingdom.

In his judgment Mr. Justice Jacob first of all pointed out that the British Copyright statute contains no provision equivalent to that in 17 USC 102 specifically excluding copyright protection for ideas. As a result of this he doubted the applicability in the United Kingdom of the "abstraction - filtration - comparison" test of United States cases such as Computer Associates v. Altai.

In the judge's view, the general structure of a computer program was analogous to the plot of a novel. Just as copying of the detailed plot of a novel could be copyright infringement, even if there was no literal infringement, so could copying the general structure of a computer program.

Against this background the judge had no difficulty in finding that the copyright had been infringed in a case where the originator of some programs had left his former employer and then produced improved versions of the programs for a new employer. Furthermore it was found that there was copyright infringement in certain file transfer programs that were written to permit transfer of data that had been input into data files in the programs of the former employer to the appropriate data files for the new programs. In the judge's view the taking of the file record layouts of the original programs in order to create the file transfer programs constituted an infringement of the copyright in the original programs since such record layouts constituted a "substantial part" of the original program.

If this decision is followed in subsequent cases it would seem that protection for computer software in the United Kingdom may be broader than is currently the case in the United States.