Ideas, expressions, and puddings: IPEC reviews copyright in computer programs

[Söğüt Atilla-Aydın]

Home / computer programs / copyright / Edozo v Valos / idea/expression dichotomy / IPEC / Söğüt Atilla-Aydın / Ideas, expressions, and puddings: IPEC reviews copyright in computer programs

Ideas, expressions, and puddings: IPEC reviews copyright in computer programs

 Söğüt Atilla-Aydın Saturday, January 31, 2026 - computer programs, copyright, Edozo v Valos, idea/expression dichotomy, IPEC, Söğüt Atilla-Aydın

In a judgment delivered last week, concerning a request for a declaration of non-infringement, the Intellectual Property Enterprise Court (IPEC) determined whether Edozo Ltd (claimant) indirectly infringed the software copyright owned by Valos (UK) Ltd (defendant) by developing software that provides essentially the same functions as Valos’s, namely valuation and offering other relevant information about real property. 

CopyCat observing the Cat.

Background

Valos owns a source code, which it considers to be an original literary work. Valos did not claim that Edozo had had access to this source code. However, it still accused the claimant of indirect copyright infringement under s. 16(3)(b) of CDPA. According to the defendant, Edozo reproduced “the sequence of dynamic logic and modularity” (which was later clarified by its counsel as “a set of steps which the user of the Valos system will take and what is sequentially shown by the system to the user as he or she navigates the procedure generated by the Valos software in order to obtain the information sought”). Valos therefore claimed that, by copying these publicly available ‘Valos Steps’, the claimant also ultimately indirectly copied its software. 

Court’s decision

Edozo submitted that copyright in computer programs protects the skill, judgement, and labour in developing the source code used in the said program but not its functionality (i.e., the tasks that the program enables the software to perform), and that it had not copied any of the protectable elements of Valos’s software.

Agreeing with Edozo, the IPEC concluded that Valos Steps were not a form of expression that can be protected by the copyright over the source code. Accordingly, it held that Edozo did not infringe Valos’s copyright. Unfortunately, the court did not explicitly state why it placed the Valos Steps on the idea side of the dichotomy. However, it spent a considerable time discussing some relevant cases which had attempted to clarify the scope of protection of computer programs, making this case worthy of a closer reading.

The pudding analogy

The court explained the “pudding analogy”, provided by Pumfrey J in Navitaire v easyJet. According to Pumfrey J, comparing traditional literary works that have a theme, plot, and a narrative to computer programs that lack all of them (and therefore devoid of any meaningful similarity with other types of literary works), with an attempt to identify the unprotected elements of the latter is a poor practice. A better analogy that can more accurately differentiate ideas from expressions in the context of computer programs is to compare their creative process to that of a chef’s invention of a new pudding recipe. After a considerable number of trial and errors, a chef can come up with a delicious pudding. And it is only after this result that they create the literary work, i.e., the recipe. According to Pumfrey J, another chef can study that pudding and formulate their own recipe, and even if the latter recipe ends up being substantially similar to the former, one cannot talk about an actionable reproduction in this scenario as the second chef merely reproduced the type of labour that is not covered by copyright law, i.e., the creative labour of developing a new recipe. It was also previously held that developing a computer program merely by observing the non-protectable elements, such as its functionality or descriptions, is “exactly analogous to” (emphasis added) the lawful actions of the latter chef studying the former chef’s pudding [see SAS Institute para 85].

Adopting this same ratio, the IPEC appears to have concluded that Edozo merely observed Valos’s pudding (i.e., the Valos Steps) and came up with its own recipe (i.e., Edozo’s own software) without infringing Valos’s copyright over its recipe (i.e., Valos’s software).

Comment

The IPEC also discussed Jacob J’s idea/expression dichotomy analysis in IBCOS, where he said that deciding whether something is merely an idea or an expression, or whether it is functional or not is a question of degree. Despite citing this phrasing, while interpreting it the IPEC seems to have slightly altered Jacob J’s approach by stating that if an idea within a copyright work is not reproduced in sufficient detail, there cannot be an infringement of copyright [para 29]. These two approaches have a significant difference, rendering the latter phrasing open to criticism as it primarily – if not solely – considers the reproduction of an idea. It is possible for an idea to be materialised and turned into a specific expression. But even in that case, it is that specific expression that is entitled to copyright protection. While Jacob J’s suggestion reflects this nuance, the IPEC’s paraphrase seems to miss it as it does not focus on the detailed expression of an idea but rather on the detailed reproduction of an idea underlying a copyright work. Since an idea can be freely used and re-used in subsequent works in various levels of detail, unless the particularisation of the idea results in an expression that is substantially similar to a copyright work, copyright infringement cannot be established.

Hacon J’s phrasing of the dichotomy therefore does not seem to align well with the aims of separating ideas from expressions. Having said, as he did not provide much detail demonstrating how he applied the law to the facts of the case and as he focused on the functionality of Valos Steps in rejecting copyright infringement – rather than the degree of detail in which that functionality was reproduced by Edozo – Hacon J avoided providing an implicit protection to the idea, i.e., the functionality of the computer program, and therefore suggesting an unlawful approach to the idea/expression dichotomy. Nevertheless, this approach to the dichotomy risks blurring the line between protectable and unprotectable elements of a work and should therefore be disregarded in future cases.

Although this Kat finds it highly difficult, if not impossible, to reconcile the ‘detailed reproduction of an idea capable of constituting infringement’ approach with the pudding analogy – which were both acknowledged by the court in this case – she is content that the IPEC still rejected the indirect copyright infringement claim. Although arguably unintentionally, the court seems to have left the question of how, on the one hand, careful studying of ideas cannot amount to indirect copying while, on the other hand, the detailed reproduction of those ideas may do so, unanswered. Accepting one needs, at least implicitly, to overrule the other, and this Kat believes that one needs to read the case as being decided on the pudding analogy ratio that has been uphold in numerous cases concerning the copyrightability of computer software. 

CopyCat ending up providing the same functions as the Cat.

Moreover, despite illustrating how indirect copying may occur [para 23], the court does not seem to realise that what happened in the case had no relevance to indirect copying. On the contrary, it accepted that it may indeed be the case [para 26]. However, because of finding that the copied part is not protectable in the first place, it did not elaborate more on whether that copying was direct or indirect. It appears that, while Edozo directly copied or studied non-copyrightable elements of Valos’s software, Valos nevertheless attempted to obtain protection for the functional elements of its program under the disguise of indirect copying. It would have perhaps been wise for the court to pick up on this and explicitly reject such attempt to prevent future claims founded on this same approach that is bad in law.






Photo and caption credits: Lauren Crais

Do you want to reuse the IPKat content? Please refer to our 'Policies' section. If you have any queries or requests for permission, please get in touch with the IPKat team.