Comparison of Patent

and Copyright Protection

      The elements of "access" and "substantial similarity" must be present for copyright infringement of works of any type. For example, many photographers take photographs of the same scene, and all their copyrighted photographs are virtually identical. However, there is no infringement because the photographers did not have access to the others' photographs, and did not copy from one another.
     Copyright protection is very different from patent protection with respect to infringement. Copyright infringement requires "access," and therefore some knowledge of the work that is infringed. However, patent infringement occurs whenever someone makes, uses, sells or offers to sell a patented invention, regardless of whether they are aware of the patent or the patent owner's products.
     Copyright protection is also limited in that it does not protect features that are included primarily due to functional considerations. For example, a series of screens in a user interface for a computer program may contain textual material necessary to guide the user through a series of logical steps. Another program may have a similar interface without infringing, because the screens are primarily functional. However, screens in an interface that include unique graphics and other material not dictated by functional considerations probably cannot be used by another without an infringement problem. Deciding to what extent the "look and feel" of an interface of a computer program is protected by copyright is often difficult, and legal advice on these issues should always be obtained.