It is not unusual for software developers to re-use or “cut and paste” snippets of code from other programs. Accordingly, a recent U.S. court ruling may cause some concern in this community.

Microsoft was sued under the U.S. Copyright Act for copying only 0.03 per cent of Veritas’ software program, and unsuccessfully brought a motion in a Seattle district court to dismiss a claim of copyright infringement.9 Microsoft allegedly copied a transaction macro for preventing data loss. A mere 54 lines out of a total of 160,000 lines of program code were at issue. Microsoft did not copy the code verbatim but instead modified the code by, for example, upgrading the programming language from C to C++. The Court explained that even a small amount of code might be sufficiently important to the operation of the software to produce a finding that the two are “substantially similar”. It may give the overall code distinctive features or make it especially creative or desirable.

In Canada, copying a “substantial part” of a software program in any material form without the owner’s consent may amount to infringement.10 The overall program must be an “original” literary work to receive copyright protection.11 The entire code will be considered original if it was created through the exercise of skill and judgment, and not a purely mechanical exercise.12 “A substantial part” is not determined by a hard and fast rule based on a particular percentage or quantity of code.13 It is a question of quality more than a matter of quantity. Some relevant considerations include: Was it copied intentionally to save time and money? Is the copied portion used in a similar manner? Is the copied portion the proper subject matter of copyright? Does it diminish the value of the copyrighted program?14

In one Canadian case, 40 lines of code copied from a program of 14,000 lines were not considered substantial.15 The similarities between the programs were not found to be substantial as they reflected common programming practices and were not the original expression of the underlying program. However, it is certainly conceivable that in a particular case, a small portion of code could be found to represent a substantial part of an overall computer program for purposes of copyright infringement in Canada.