Protection of Application Programming Interfaces and the Idea-Expression‘ Dichotomy: the Google-Oracle Dispute through a Competition Law and Economics Perspective

Abstract

Copyright law has one overarching goal: to promote creativity. Thus, it seeks to protect not the idea itself, but its unique expression, and, since its first exposition in the seminal case of Baker v Selden, this rule has cemented itself as the guiding principle for determining copyright infringement around the world. In our computer age, the applicability of the rule to software programs has proved both difficult and contentious. In a nascent software market, the problem of locating the idea-expression dichotomy within the context of a software program was accentuated because there existed no clear test which would help demarcate the idea in software from its expression. This encouraged the first entrants into the market to dissuade new entrants by simply copyrighting the interfaces required to develop newer software. The three – step test evolved in the Altai decision, a newer iteration of the idea-expression rule, had given succour to judicial authorities in determining the extent of protection to be granted to a software program. However, the Federal Court‘s decision in Oracle v Google has given short shrift to the idea-expression dichotomy by allowing application programming interfaces (APIs) to be copyrightable. The authors argue that, in light of the U.S. Supreme Court‘s overturning of this decision, the distortion of the very fabric of the dichotomy, as well as the structure of the software market, has been, for the time being, averted. The aim of this article is to examine the modern contours of the idea-expression dichotomy by juxtaposing its application in Altai vis-a-vis its non-application in Oracle v Google, both at the Federal Court and Supreme Court, through a competition law and economics perspective, and its broader implications upon the monopolisation of the software market.