Fundamentals of IPIntellectual Property

Replication of user interfaces: When IP theft is disregarded

The Zoom- JioMeet fiasco reintroduced the burning question of protection of User Interface (UI) as an Intellectual Property. The uncanny resemblance between the two brought in a lot of ridicule for the Reliance conglomerate. Earlier, the Indian startups like Ola and Flipkart had also attempted to try and copy the GUI of their American counterparts, Uber and Amazon when they were newly launched. This article deals with India’s standing in this division of IP protection and the immediate need to fortify the hard work by the software developers.

What is a Graphical User Interface?

Graphical User Interface (hereby: User Interface/ UI) is the node between an application in an electronic device and its user. This nexus is established on various graphic elements namely, icons, menus, text boxes, scroll bars, and animated features. A significant development in the tech ecosystem came in with the introduction of user-friendly interactions which left behind older user interaction types (text-based commands). The success of any mobile application majorly relies on how well thought a UI design is, making it accessible & easy to use for users of all age groups. Protection of UI’s against imitation & emulation is the need of the hour.

Protection of Graphical User Interface (GUI)

The Design Rules, 2001, an extension of the Design Act, 2000, through its Third Schedule protects the rights of design creators and innovators in India. GUI designs are safeguarded under the same umbrella in consonance with the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.  New or original features of shape, configuration pattern, ornamentation or composition of lines or colours as applied to an article both 2D & 3D can be registered. In the year 2008, a new classification of goods was introduced by the amendment of the Third Schedule, to comply with the Locarno Agreement on International Classification for Industrial Designs. This new Class 14-04 was primarily dedicated to ‘Screen Displays & Icons’.

The Designs Act, 2000 has recognised the protection of GUIs but the Indian Design Office has given a dim response on this front. The GUIs do not qualify as an article of manufacture & thus debar them from claiming any protection as a design. It has initially granted protection to Microsoft Corporation. The registration office later went on to reject the application by Amazon on the basis that the GUI was providing supplemental information of digital work on a display screen and they could accept design based on the classification only. The impugned design did not qualify to fall in the bracket of design as defined under Section 2 ‘a’ & 2 ’d’ of the Design Act. A GUI cannot be considered a comprehensive article as it does not contain a shape or configuration. After this case, the design office has taken a stricter cognizance in the interpretation of ‘article’ given in the Act.

The stand of the competent authority is hazy and unpredictable and voice that screen displays cannot be protected in a broader sense.

Brief History: Software Copyrights to Graphical User Interface Protection

Issues about User Interface Protection find its way back to software copyright issues which form the basis of these rights. The first instance where infringement of copyright was recognized referred to a dental laboratory customer service management program and copyright protection was granted to the ‘structure-sequence-organisation’ of the program. It was brought to light that ‘ideas’ represented by the functions of the program could not be protected while ‘expressions’ made of creative elements could be. These creative elements were nomenclature as ‘concept & feel’ later.

The issue turned heads when Apple sued Microsoft & Hewlett Packard for alleged infringement of copyright  & breach of contract. Microsoft’s use of Apple’s GUI was ‘white label’ but that did not mean that the GUIs could not be protected under copyright. The mere idea is not copyrightable but if the GUI is manifested by a variety of expressions, then such expressions are copyrightable. If a GUI is a mode of expression then it deserves to be protected under the Intellectual Property Laws.

Recently, in a seven-years long, multi infringement battle between the tech giants, Apple claimed that Samsung had infringed its Patent on the User Interface for a ‘grid of sixteen colourful icons’ on a rectangular screen. Multipoint Touchscreen and Heuristic Patent was put up in question. Samsung was made to pay hefty amounts for the damage to Apple and copying its user interface.

Uncertainty in the Indian Law

Ambiguity persists in the matter whether GUIs should be protected under the Copyright Law or the Design Law. A GUI may qualify as ‘artistic work’ and can be protected as copyright while simultaneously be registered and protected under the Design Act. Under the Design Act, the protection is limited to the use of the design in an article and not its reproduction on other articles. It does not protect the graphics, labels and logos as they are not applied to any article. The Indian Design Rules are silent on Class 32 of the Locarno Classification.

While the US Design laws permit to enclose the designs for registration in a box of broken lines signifying that it will be used on a screen, the Indian Design laws object to use of dotted or broken lines as they denote the elements of the article to be excluded from protection. Dotted/ broken lines indicate elements which are not a part of the design according to the understanding of the grant office. The Locarno Manual is overlooked by the registration examiners and thus the right approach dwindles.

Graphical User Interface Protection & Unfair Competition

Development of a similar mobile application as an alternative for the users is a permissible act. If the alternative app is exactly like its prototype then the owner of the prototype may seek a remedy overstepping the ‘reasonable use’ clause in Section 3(5) of the Competition Act, 2002. In common law jurisdictions like India, the plaintiff will have to establish that the replica app leads to misrepresentation and deception of the target users as an appropriation of the GUI of the original app indicates to the original work. The unfair competitions laws grant a remedy even without evidence of consumer misperception. It would be easier to claim unfair competition if the registration of GUIs was in practice.

For mobile applications that run on the Android OS, Google PlayStore has taken measures to protect copyrighted content of the application. Under ‘Impersonation and Intellectual Property’ Policy, PlayStore does not allow any applications that use alternative applications or their content which may lead to impersonation to deceive & mislead the users. Any implication for a relationship with another application may lead to the wrong even when the intention to do wrong is absent. The policy applies to non-participating application and brands that may have been copied. Moreover, the policy does not allow applications that tend to infringe copyrighted material of other developed applications. Modified or derivative works may still be an intellectual property wrong. Creators may have to produce evidence confirming their right to use protected content.

In the case of Zoom & JioMeet, Zoom may claim unfair competition as the new application is deceptively similar to the old and may lead to confusion among the users. Even when JioMeet did not use the same colour, a layman may not be able to differentiate between the two shades of blue.

Copy the GUI: Primary Step to make an Application

There exist varied apps for video sharing in the PlayStore to compete with their banned Chinese counterpart, TikTok, like Mitron, Chingari etc, but the ban on TikTok by the Government of India paved way for them to capture the Indian Market. MX TakaTak is one such application which was introduced making the most out of this embargo.

MX TakaTak is unapologetically similar to TikTok, whether one considers its name or the User Interface. The colour scheme, the icon placement, the languages (it is available in 9 languages), everything that you may remember or relate to TikTok, has been blatantly copied in the user interface of this application.

The application has a fairly good user rating and has more than 10 million downloads, despite being based on a pre-existing similar application and a similar User Experience. But does this allow to copy the UI of an old app to make the new one successful? Is User Experience a thorn in development of a UI and to curb innovation?

User Experience vs User Interface

In the time we are so dependent on digital devices, a User Interface rives into User Experience. User Experience & User Interface are two sides of the same coin. Users expect one application to work in the same way the other similar application does. Jacob Neilson’s law of User Experience explains that users expect a certain application to work in a way they have been using it already. Machine-human interaction is based on psychological understanding. If the user is familiar with the UI, one would want to use it all the more making the application successful. This psychological study limits innovation in the area of UI designs and encourages the production of repeated derivates or basic copies of UIs which in turn will lead to more infringement of intellectual property rights. User Experience leads to expectations in the face of an IP wrong.

Need for Stringent Laws for GUI Protection

Looking at the bare text laws & precedents related to UI protection in India, the framing of stricter laws is the need of the hour. Graphical User Interfaces represent the multi-billion-dollar tech commerce and their protection seems necessary. The tech gadgets run on multi-faceted products which can be protected with various IP laws but the UI is the spine of a screen which entails better defence mechanism for the industry to stand straight. Ignorance to the duplication strategy will curb innovation to the extent to cause harm. India needs to wipe off the haze from its UI protection laws.

If UIs are known to be a ‘mode of expression’ then Indian IP Laws should take the cognizance of the matter as they have time and again been vocal about providing protection to ‘expression of an idea’. Ideas are not protected but the manifestation of the ideas can be. An analogy can be drawn between an artist and a software/ application developer. If right of an artist can be protected, so can be done for a developer.

This Article Can Be Cited As

Akanksha Sachan, Replication of user interfaces: When IP Theft is disregarded, Metacept- InfoTech and IPR, accessible at . 


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