Catalina Software Ltd v Professional IT (Logistics) Ltd

Particulars of claim in a software copyright action must identify the copyright work relied on with sufficient clarity, including the relevant statutory category. Similar field or table names, without more, cannot by themselves support an arguable inference of copying of source code. However, evidence that the defendant retained the claimant’s software and created screenshots from it may establish an arguable infringement case where the existence and scope of any licence remain unresolved. At the strike-out stage, the court assesses whether the pleaded case is arguable, not whether infringement is ultimately proved. Substantial defects in a pleading may justify amendment rather than striking out the claim where an arguable case has been identified.

The claimant brought a software copyright infringement claim concerning its Freedom software. The defendant applied at a case management conference to strike out the Particulars of Claim under CPR 3.4(2)(a), arguing that the claimant had not identified the copyright work and had disclosed no arguable basis for inferring copying.

The pleading referred generally to the Freedom work, source code, database schemas, data logic and other materials. It relied on confidential Annex C and screenshots in Annex E. The claimant clarified that it relied only on copyright in the source code of a computer program and asserted that the defendant had created the screenshots using retained copies of the software. The central issues were whether the claim was sufficiently identified and whether it disclosed an arguable case of copying.

1. Copyright work. The Particulars of Claim did not clearly identify the type of copyright work relied on. Their references to program code, database schemas, data logic and related materials created uncertainty about whether the claim concerned a computer program, a database, a table or compilation, or more than one category. The claimant’s clarification that the claim was limited to the source code of a computer program, together with its undertaking to supply the source code, made this aspect of the strike-out application untenable.
2. Alleged similarities. Even if Annex C suggested that the defendant used similar field names and table names, those similarities could not, by themselves, arguably amount to infringement of copyright in the claimant’s source code.
3. Arguable copying case. It was common ground that the defendant retained at least one copy of the Freedom software and had created the screenshots from that software for a customer. The unresolved question was whether this conduct occurred under a licence available directly or indirectly to the defendant. That issue could not be resolved on the application, but the pleaded facts established an arguable case of infringement of copyright in the source code.
4. Disposition. The application to strike out the Particulars of Claim was dismissed. The pleading required substantial amendment to reflect the case actually advanced, but striking it out and requiring the claimant to start again was unnecessary. Directions were to reflect the amendments required.