On 13 May 2015 the District Court in The Hague rendered a judgment in the case of X against Y on the alleged infringement of copyright in a web application (“app”) that had been created for daycare centres. Plaintiff X is the manager of Teddy Kids B.V. daycare centre.

X wished to develop an app using graphics that give users insight into information on the children staying at daycare centres and on their parents. Also, information about the daycare centre’s employees, such as their working schedules, could also be viewed via the app. Defendant Y is the manager of two Bulgarian companies that develop commercial software. X and Y entered into an agreement for the joint development of the so-called eKidz-app and the marketing thereof.

From October 2012 until April 2013, X and Y worked on the eKidz-app and field-tested it at X’s daycare centre. The eKidz-app consists of two main elements: the Grid View (a user interface in the form of a grid with portrait photos of the accommodated children) and the Teacher Planning (a user interface showing the working schedules of the daycare centre’s employees). In February 2013, Y registered the domain names ekidz.nl and e-kidz.nl.

In April 2013, Y terminated the cooperation it had with X and entered into negotiations with other partners for the marketing of the eKidz-app. A month later, Y denied X access to the eKidz-app and transferred the relevant files to another server.

In the dispute before the District Court, X stated that Y committed a contractual breach or had at least acted wrongfully towards him. He believed that Y had infringed his copyright in respect of the eKidz-app. X demanded that Y should therefore remove all the content relating to the eKidz-app from his servers and should inform third parties that the eKidz-app had been provided to Y without the permission of the copyright owner. Finally, X demanded that the domain name ekidz.nl be assigned to it and sought damages.

Firstly, the Court stated that an app can be eligible for copyright protection under Dutch law if it can be considered an expression in any form of a computer program. European case-law indicates that the overall concept of functionality of computer programs as such does not qualify as an expression of a computer program. However, the individual elements of a computer program may be eligible for copyright protection if they are original in the sense that they are the author’s own intellectual creation. Subsequently, the Court pointed out that the eKidz-app consists of various elements (functionalities, source codes, and user interfaces) and that for each of these elements, it should be assessed whether it is copyright protected and whether X or Y is the rightful owner of the copyright.

The Court held that the functionalities, as a component of the eKidz-app, are not protected by copyright because they do not form an expression of the app. The individual functionalities as suchcould have been protected by copyright, but X did not make a claim on these grounds in the case here. In respect of the source codes, the Court held that they are protected by copyright. It also held that Y was the rightful claimant of these rights since they derive from his intellectual creation and he had made all creative choices related thereto. Furthermore, the Court found that X designed theGrid View and the Teacher Planning and, as such, X must be considered the owner of the copyright in these user interfaces.

Moreover, the Court ruled that the eKidz-app must be considered a combination of the source codes and the user interfaces. As such, the exploitation of the eKidz-app requires the consent of both copyright holders (Y in respect of the source codes and X in respect of the user interfaces).

In light of the foregoing, the Court concluded that Y had infringed X’s copyright in the user interfaces by making the eKidz-app public to potential business partners without the prior consent of X. Therefore, Y has to pay compensation for the damage suffered by X as a consequence thereof. The damage will be assessed in subsequent hearings.

Y successfully disputed X’s claim that X maade up the name eKidz and that X could claim any rights in respect of the domain name ekids.nl. Therefore, Y does not have to transfer this domain name to X.

In respect of X’s claim of contractual breach, the Court held that Y failed to perform his obligations under the agreement with X (e.g., by removing the software from the server). Consequently, Y was liable for the damage suffered by X as a consequence of his non-performance. These damages will also be assessed in subsequent hearings.

Source: District Court, The Hague, 13 May 2015, ECLI:NL:RBDHA:2015:5598.