Can you recreate a competitor’s SaaS with AI?

Do similar functions amount to infringement?

A program’s underlying idea and functions are not the same as a copyright-protected work. Copyright protects expression, not the idea, procedure or operating principle itself. A competitor therefore does not gain exclusive rights over every application that solves the same problem.

The Court of Justice of the European Union (CJEU) confirmed this distinction in SAS Institute, C-406/10. A program’s functionality is not a form of expression protected by copyright in the computer program. The judgment does not, however, give general permission to copy any product. It is still necessary to establish what was actually taken and how the information needed was obtained.

Nor is it enough to say that an application was created “for personal use”. The general private-use exception in Article 23 of the Polish Copyright Act does not apply to computer programs.

Code, screens and content are separate issues

A SaaS product is not a single, indivisible subject of protection. Its code, interface, descriptions, graphics, document templates and data must be assessed separately. Writing your own code may address only part of the problem.

A graphical user interface is not protected as a form of expression of a computer program. It may, however, qualify for copyright protection under the general rules if it reflects human creativity. This distinction follows from the CJEU’s judgment in C-393/09. An ordinary price field or save button is not automatically reserved for one business’s exclusive use. The position may be different for an original graphic design of an entire screen.

The same applies to text and templates. A short, obvious label need not be a copyright work, but a detailed description or an original document layout may be. There is no universal percentage of similarity below which copying becomes lawful. What matters is the nature of the elements taken, not just how many there are.

The absence of copyright protection does not end the analysis. The way materials were obtained or the product is presented may require a separate assessment under unfair competition law. That does not mean every similar application is unlawful.

AI does not remove other people’s rights

“The model wrote it from scratch” does not answer the question of whether the result infringes a competitor’s rights. A model may reproduce protected elements of the material it receives. Giving it someone else’s content may itself need legal assessment; the issue does not arise only once the finished application is published.

The rights in AI-assisted output are a separate question. You should not assume that every generated piece of code or graphic automatically qualifies for copyright protection. What matters is the actual creative contribution of a human. Paying for the tool does not, by itself, establish exclusive rights in the result.

The AI provider’s terms are another matter. They may set rules for commercial use of the output, requirements for input materials and the scope of liability. They do not, however, replace permission from a third party whose rights have been infringed. A provider’s permission to use the output is not a guarantee that it is free of third-party rights.

In practice, this means separating the rights granted by your agreement with the AI provider, any copyright protection for your own contribution and the lawfulness of using all the application’s components.

What you can check through an account with a competitor

Testing a program you may lawfully use is not the same as copying its code. Copyright law allows a person entitled to use a copy of a program to observe, study and test how it works in order to establish its underlying ideas and principles, while carrying out authorised acts. Contract terms that conflict with this statutory right are void.

For SaaS, however, a substantial part of the program runs on the provider’s servers. Opening an account does not by itself give you the right to use a copy of that part or access its code. The exception for studying a program cannot therefore automatically be treated as covering every analysis of a browser-based service.

The actual scope of access and the terms of service need to be checked, particularly provisions on automated downloading of content, use of materials and confidentiality. Not every restriction in the terms will be enforceable, but neither can all restrictions be assumed to be invalid.

Decompilation is a separate issue. The statutory exception is for obtaining information necessary for an independently created program to interoperate with other programs, subject to specific conditions. It is not general permission to take a competitor’s product apart and copy it.

Trade secrets and database rights require a separate assessment. Confidential materials received in a business relationship may be protected even if they are not copyright works. Not every collection of data is protected, but public access to a database does not amount to permission to take its contents for a competing service. For a database protected on the basis of substantial investment, extracting all or a substantial part of its contents is particularly relevant. Technical access to a data export does not, by itself, determine how the exported data may be used.

Subscriptions and the claim “an alternative to…”

Selling access on a subscription basis does not automatically require exclusive copyright in every component of an application. You do, however, need rights that allow you to use the components lawfully and provide the service under your chosen business model. A later sale of rights in the entire application is different: you cannot transfer exclusive rights you do not hold.

Marketing needs to be checked separately. Using a competitor’s name in a claim such as “an alternative to…” is neither always prohibited nor always permitted. It may amount to comparative advertising, which is subject to specific conditions.

The comparison should concern services that meet the same needs and be based on a fair, objective and verifiable assessment of their features. It must not mislead, cause confusion between providers, discredit the competitor or take unfair advantage of the reputation of its distinctive signs. Nor should it present your own service as an imitation of a product bearing a protected sign. The advertisement as a whole matters, not just a particular phrase.

How to build your own product

It is worth keeping a development history, successive versions and records of where the components came from. When working with a developer or graphic designer, you also need an appropriate agreement covering the work actually being done and the rights required.

This documentation can help demonstrate an independent development process. It is not, however, a guarantee that the product is lawful. A record of AI prompts will not cure a missing licence, and describing a copied screen in your own words does not establish that the final design is independent.