Copyright Law and Technological Innovation: Lessons from the Gownow Case

By Gustavo Piva de Andrade & Amanda Martins Navegantes, Dannemann Siemsen

One of the most fundamental axioms of copyright law is that ideas, methods, and abstract concepts cannot be subject to exclusive rights. Recently, the 2nd Chamber of Private Law of the São Paulo State Court of Appeals reaffirmed this principle in a significant decision rendered in Appeal No. 1003238-69.2021.8.26.0100, involving allegations of copyright infringement.

In that case, the Plaintiff claimed to have conceived an application featuring a number of functionalities, which were described in an academic paper registered with both the Brazilian National Library and the U.S. Copyright Office. Although the Plaintiff never actually launched the application he had envisioned, he argued that several elements of the technological solution described in his paper were subsequently incorporated into another application without authorization, thereby constituting copyright infringement and giving rise to a claim for damages under the applicable legislation.

In rejecting the Plaintiff’s arguments and claim, the Court reaffirmed the idea-expression dichotomy in copyright law, making clear that the Brazilian legal system protects the form of expression of a copyrighted work, rather than the ideas, methods, and concepts described therein.

The Court was correct in reaching this conclusion, as copyright protection serves a dual purpose. On one hand, it seeks to reward authors for the intellectual effort invested in the creation of their works. On the other, it seeks to promote the progress of science and the useful arts in the benefit of society as a whole.

It is precisely this latter objective that explains why ideas, methods, and concepts cannot be appropriated on an exclusive basis. If they could, creators would soon find themselves unable to create or develop new works without infringing third parties’ rights. The result would be the progressive stifling of creative activity, the very opposite of what the copyright system seeks to promote.

Taken to its logical extreme, the Plaintiff’s theory would produce results plainly incompatible with the rationale underlying the legal system. It would be enough for someone to describe the idea of a “flying car” in an academic paper and then claim the right to prevent an automobile manufacturer, years later, from developing a vehicle actually capable of traveling without contact with the ground. Copyright law, of course, does not grant a monopoly over ideas or abstract concepts. It protects only the form of expression of those ideas.

The importance of this distinction becomes even more apparent in the software industry, a technological field whose development is inherently cumulative. New programs are constantly built upon preexisting concepts and functionalities. If the mere conception of a particular functionality were sufficient to generate exclusivity, technological innovation would be severely compromised.

It was precisely this concern that guided the Court when it observed that “the Plaintiff’s claim is based on an attempt to confer legal protection upon a mere idea described in an academic text, something that finds no support in Brazilian law. Copyright does not protect ideas, methods, systems, or strategies, but only the form of expression of a given work, as expressly provided by Article 8 of Law No. 9,610/98.”

Drawing an important distinction between copyright and industrial property rights, the Court further emphasized that “only an utility patent, granted through a constitutive act issued by the competent authority, is capable of ensuring exclusivity over an inventive idea.”

Finally, the Court stated in unequivocal terms that “the appellant’s attempt to equate his descriptive text with either an utility patent or an actually developed computer program reflects a conceptual misunderstanding that has long been rejected by the case law of the Superior Court of Justice, according to which ideas and concepts form part of the common heritage of humankind.”

Indeed, Brazilian courts have long recognized that copyright law protects the creative expression of a work rather than the functional or conceptual content embodied within it. Otherwise, the first ride-sharing application would enjoy a monopoly over geolocation features. The first online marketplace would hold exclusive rights over the shopping cart concept. The first banking application would monopolize digital payment functionalities, among countless other examples.

The harmful consequences of such an interpretation are clear. Startups and technology companies would constantly find themselves in a legal deadlock, operating in an environment of significant legal uncertainty. Functionalities and business models could be improperly appropriated, creating artificial barriers to innovation and undermining the principles of free competition and free enterprise.

For all these reasons, by reaffirming that ideas belong to the common heritage of humankind and that copyright protection extends only to the expression of works, the São Paulo State Court of Appeals not only correctly applied Brazilian Copyright Law, but also preserved one of the fundamental pillars that underpin innovation and technological progress.

Gustavo Piva de Andrade and Amanda Martins Navegantes are intellectual property attorneys and partners at the Dannemann Siemsen law fim.