ICT, Copyright and Patents

Software Copyright Overview

John Lambert

22 Sept 2005

The need for legal protection of computer programs was first appreciated in the early 1980s with the development of the micro-computer. Before then, the issue rarely arose if ever because there was no market for computer software. In the early days of computing, computer programs were simply not portable. Even after it became possible to run programs on more than one computer, the relatively small number of users, the incompatibility of systems and the weight and bulkiness of storage media limited demand. Software became valuable when the computer began to appear in homes, schools and small businesses.

Copyright (Computer Software) Amendment Act 1985

Although there had been a number of cases in England and the Commonwealth the early 1980s in which interim injunctions were granted on the assumption that copyright subsisted in the source and object  code of a computer program, the Copyright (Computer Software) Amendment Act 1985 made it clear beyond peradventure. That statute required a computer program to be treated as a "literary work", running a program on a computer as "reproduction" and converting a program from one language into another (presumably "compiling") as "adaptation.

Look and Feel

Copyright protects a work against copying. It does not, however, confer a monopoly of the subject matter of a literary work. A question that often arose was what constitutes "copying" in the context of computing? Is it confined to the ones and noughts of binary notation or the Latin characters and Arabic numerals of source code or does it extend to the "look and feel" of a program, that is to say the thought processes and information contained in a program's source code? The issue was particularly acute in the USA where  §102 (b) of the Copyright Act specifically excludes ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries from protection regardless of the form in which they are described, explained, illustrated, or embodied. The dichotomy between ideas and expressions gave rise to a ingenious forensic techniques which filtered non-protectable ideas from protectable works according to their position on a scale between the totally abstract and the totally concrete (see Part V of Judge Becker's judgment in Whelan Associates Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (F 3d 1986)). The issue was resolved in the USA with Whelan v Jaslow when the US Court of Appeals for the Third Circuit concluded that "copyright protection of computer programs may extend beyond the programs’ literal code to their structure, sequence, and organization." That case was followed in England by M.S. Associates v Power [1988] FSR 242 and in Australia by Autodesk Inc. v Dyason [1992] HCA 2; (1992) 173 CLR 330 FC 92/001 (12 Feb 1992) where much the same reasoning was applied.

The Copyrights Designs and Patens Act 1988

S.3 (1) of the Copyright Designs and Patents Act 1988, which came into force on 1 Aug 1989, changed the law slightly by including "computer programs" specifically within the statutory definition of "literary works". Moreover, s.17 (2) made clear that copying in relation to a literary work includes storing the work in any medium by electronic means. S.17 (6) added that copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work. The Act has been amended several times by regulations implementing the software, rental right, term, database and information society directives. An unofficial consolidation of the current legislation appears on the Patent Office website.

TRIPS

Art 10 (1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides:

"Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)."

Moreover, art 10 (2) requires protection of databases:

"Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself."

However, the idea-expression dichotomy is reinforced by art 9 (2):

"Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."

Berne and WIPO Treaty

Computer programs are not specifically mentioned in the list of "literary and artistic works" in art 2 (1) of the Bern Convention but art 4 of the WIPO Copyright Treaty inserts them within that definition.

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Case Notes

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