Jumar Solutions Ltd v McKee

Copyright infringement requires more than similarity between software products, particularly where the similar features are unoriginal, functional, derived from public materials, or capable of independent creation. A software developer may recreate similar code flowing naturally from pre-existing materials and suited to a particular purpose, provided the developer does not slavishly copy works created for an employer. Use of confidential information with consent is not misuse, but continued development after that consent has ended may constitute misuse. The claimant must nevertheless establish that the later use or distribution would disclose the relevant confidential information.

Jumar Solutions Ltd sued its former consultant, Derek McKee, concerning software developed for CA Gen migration. It alleged infringement of copyright in its MAPS software, misuse of confidential information, and breach of contract. Jumar claimed that the defendant had used MAPS materials and copied its software in developing competing software.

The court considered ownership and subsistence of the alleged copyright works, similarity and derivation, the significance of common code, the contractual position, and whether confidential information had been misused.

1. Copyright subsistence and ownership. Jumar established ownership of copyright subsisting in the MAPS works, but some parts were unoriginal. Mere similarity was therefore insufficient to establish copying or infringement. Copyright was unlikely to subsist in algorithms or schemas in the abstract, and Jumar had neither properly particularised nor proved the relevant content.
2. Similarity and derivation. The McKee Software had a materially different architecture, data structure and method of operation. Similar inputs and outputs did not establish that it was a translation of MAPS. The evidence did not establish sufficient similarity or derivation, apart from similarities in common code.
3. Independent creation. The common Java code was found to have been authored by Mr McKee and to derive from pre-existing materials and coding patterns. A developer cannot slavishly copy works created for an employer from pre-existing materials. However, copyright law does not prevent the developer from creating the same or similar works again where they flow naturally from those materials and are the most appropriate code for the particular purpose. The copyright claim therefore failed.
4. Confidential information. Mr McKee used Jumar’s confidential materials, including its models and testing information, while developing the software. The early use was consented to and was not misuse because it occurred in circumstances where Jumar was expected to benefit. Continued development after the parties’ October 2014 falling-out built upon that earlier use and involved confidential information concerning the interface with the XML database and conversion of the model into Java code. The court found no evidence that use or distribution of the completed software would disclose Jumar’s confidential information.
5. The supplied judgment text records these conclusions but does not state a final operative order.