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Copyright and Computer Programs

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Introduction

The use of computers and computer programs has infiltrated virtually every human activity in today’s information technology society. The rapid technological changes and advancements over the past fifty years have resulted in the application of existing copyright principles to technologies for which it was neither designed nor ever envisaged. The interests and creativity of an author in legal protection must be balanced with the policy goal of maximising knowledge in the public domain through technological improvement (competition and improvement) and the subsequent development of society. In addition, any attempts to logically protect computer programs must consider European Union and international obligations, primarily the Berne Convention1) and the Universal Copyright Convention (UCC)2).

In the United Kingdom, the legal concept of copyright which has evolved from the 1709 Statute of Anne has traditionally been the choice of protection in this field, in accordance with most other countries. Protection of computer programs by copyright was first specified in English law with the enrolment of the Copyright (Computer Software) Amendment Act (1985)3), which detailed that the Copyright Act protection of a 'literary work' shall be extended to a computer program, offering programs protection as though they were a literary work. This was itself repealed by the Copyright, Designs and Patents Act (1988)4), specifically mentioning the phrase 'computer program' in s.3. The EC Directive on the Legal Protection of Computer Programs5) has also been implemented with the Copyright (Computer Programs) Regulations [1992]6)) in accordance with the Community’s intentions of European Union harmonisation. The primary question therefore, is not whether copyright is the preferred means of protection for computer programs, as the legislation of most countries clearly directs those with an interest in such a work to the established copyright doctrines, but whether it is the best, or logical choice.

Given that so many countries do use copyright as the means of protection, one might well ask why not adopt copyright protection for computer programs?7) The facts show that copyright protection is far from without problems.8) In order to assess any problems it is first necessary to take account of the development of copyright itself and then apply the principles to the protection of computer programs.

Traditionally, copyright works have fundamental features common to and determinative of their nature. Common to these developments is that they are addressed to humans and the quality of the aesthetic,9) the substance of the traditional idea/expression dichotomy which lies at the heart of the copyright doctrine10). This characteristic defines those works before the extension of 'literary work protection to computer program, but a computer program does not have this fundamental characteristic.11) Unlike the traditional view that the sole value lies in conveying a message or information, the sole reason for the creation or existence of a computer program is to control a machine, or run the computer. Programs consist of both object code, which consists of simple binary language, unreadable to humans, and usually source code which bears more of a resemblance to a literary work and can be represented in a form in which it can be read by a human, and thus give information or instruction. However, as the Computer Edge case showed, the readability is incidental to its function which is to run the computer.12) Thus a computer program is clearly not a literary work (traditional copyright work). In spite of this, the trend amongst developed countries has been choosing to protect programs as a literary work, in addition to the choice of copyright itself.13)

The treatment of computer programs as literary works gives rise to further problems, relating to the width and length of protection afforded. Considering the width, there is a provision that a reproduction or adaptation of a literary work cannot be made without the authorisation/consent of the copyright holder.14) The real problem lies in the practical application; a program can neither be used nor analysed without making either an adaptation of it or reproducing it. There are exceptions to these prohibitions.15) This provides another example of the incorrectness of labelling a computer program as a literary work. A book can be read, ('used and analysed'), without adapting/reproducing it, thereby not infringing copyright in it; the case with a true literary work.

The principle of non-literal copying is another problem area within the field of protecting programs as literary works. The prohibition on copying extends to producing a version of the literary work in a different form of expression. In the application of this principle to computer programs, the courts have found infringement of copyright where the function and appearance was reproduced in a different computer language,16) or without copying the code text. The problem comes back to the idea/expression dichotomy. The courts have the difficult task of determining where the idea stops and expression of the idea starts. The functional similarity between two programs will not be indicative that the underlying codes are similar. The Software Directive, Art.6 allowed that, in certain circumstances, decompilation may be performed without the consent of the copyright holder. The courts want it to be difficult for plagiarists to avoid liability for infringement, but without giving 'copyright owners a monopoly over ideas and methods for performing certain tasks,17) which would not run with public policy interests.

A further area in which copyright protection of programs has been shown to create practical problems is the infringement of copyright to produce a substantial taking of a protected program18).

The essential judgements in this area must be specific to the facts of each individual case, and thus this is an area where the authorities are primarily that of case (judge-made) law19). Here, once again, copyright turns to the idea/expression dichotomy20)). The Whelan case and the case of Computer Associates v Altai21) were the two US cases with a somewhat variable impact in the English courts. These judgements focused on the quality of what had been reproduced. However, the search for a “core of protectable expression” demanded in the US cases was held by Jacob J., in the case of Ibcos Computers v Barclays Mercantile 22) not to be a demand in UK law, rejecting the concept. The program in this case was found to be infringed by “over-borrowing”, giving an indication of the relevance of amount, or quantity, rather than quality, as the test for substantial taking.23)

Consequently, “ideas” expressed in sufficient detail were protectable, thereby placing the non-protectability of ideas concept, and therefore the policy goals, at risk. This again shows that when applied at a practical level, the question of labour, skill and effort may not be a deciding factor in the cases coming before the courts.

The length of protection under copyright is also a case for strong argument. The minimum duration of literary work copyright for those countries which are signatories of the Berne Convention is the life of the author plus 50 years, (in the UK the period is life plus 70 years). This duration of basically monopoly protection is largely unjustifiable on the public policy grounds outlined earlier. This shows that copyright is probably not the right form of protection and countries are wrong in their use of literary work categorisation.

From a different angle, there is another problem as regards protection. The scale of software piracy is immense, almost impossible to quantify, and a further illustration of this aspect is for example the availability of pirated copies of a Windows operating system days before the official release by Microsoft and availability at a fraction of the cost(See no.8 p.1: Neil Fawcett researching an article for Computer Weekly). These examples serve to illustrate the problem in the basic concept of computers and the programs designed to run them. The sole aim of a computer program is to run the computer. It is this computer however that is the instrument for piracy and is therefore a legislatable but difficult to control infringement. This indicates their unique susceptibility as a technology and the fact that this is very likely to add again to the problem of copyright protection.

If copyright creates so many problems for the protection of computer programs, why is it still the preferred choice of so many legal systems?

Three main factors seem to have contributed. First, looking back at the early days of program protection; a representation of the program was then made in writing, looking like a literary work and hence suggesting copyright protection. The more important second reason was the facility of using the existing copyright scheme, in that no drafting or new legislation would be necessary.24) Third and most importantly was the potential in copyright for international protection, pursuant to the Berne Convention. If programs could be shown to be included in 'literary work' categorisation, there would be the requirement to provide copyright protection to literary works produced in any other country party to the treaty. In addition to these significant reasons, there are others to support the use of copyright as the possible means of protection for computer programs. Hard-wired logic25), in addition to source and object code, is also capable of protection by copyright. Recital 7 of the Software Directive provided: the term 'computer program' shall include programs in any form…including those incorporated into hardware…term includes preparatory designwork…so long as a computer program can result from it at a later stage'. The fact that design is the most important aspect of a computer program suggests that it is most deserving of intellectual property protection.

Other possible methods to protect computer programs

Despite the advantages, the array of problems surrounding copyright in this area demand a consideration of the other forms of protection which could be applicable to the protection of programs and ask the question of why another scheme has not already been adopted?

When the area of computers and programming developed, computer programs were seen as merely adjuncts to machines and thereby controlling parts of machinery. As an item of technology, the regime of patent protection was deemed appropriate. English patent protection is derived from the Patents Act 1977. Patent law confers a monopoly on the inventor, as opposed to copyright law where the effect is to confer an exploitable monopoly on the copyright owner. Developments on the international arena 26) appeared to suggest that the volume of applications for patents for computer programs and related innovations would increase over time, despite the wide copyright protection availability in this area. The European Patent Convention (EPC) Article 52(2), as interpreted by the European Patent Office (EPO), refused claims that refer to a computer program per se. There is still a possibility of claim acceptance where the program e mbodies technical inventions27).

A further problem with the use of patents is the requirement of a 'novel invention', 'inventive step', and 'capable of industrial application', where computer program applications are unlikely to fit due to the often significant, but not inventive step taken technologically and the cost and time element of applications. The development of satisfactory forms of protection for technological advances is a matter of great importance28)).

On a practical and international level, legal protection is not only found by authors in their use of copyright law but, in addition, the use of contracts, and/or licences. These contracts are usually specific to the user, while a licence agreement is specific to the use and copies permitted. The author of programs for the home market would do well to ensure an incorporation of password protection to prevent massive, wholesale copying, as sales are vast and the program quickly out of date.

The commercial value of computer programs was becoming increasingly apparent by the early 1970’s29). In 1970, the United Nations asked the World Intellectual Property Organisation (WIPO) to 'study and report' on the appropriate form of international legal protection. Their recommendations were the Model Provisions on the Protection of Computer Software. They were a regime based on copyright, but with modifications to suit the characteristics of software. Thus, a 'sui generis' regime, tailored to the specific needs of information technology subject-matter was incorporated (the program concerned). This regime, and the ‘originality’ requirement, was greatly favoured due to its flexible approach30). This new regime was enacted in the area through the implementation of the E.C. Database Directive (96/9). . These changes raised implications for computer programs; whether UK judges would be persuaded that the “author’s own intellectual creation” standard should apply to programs as a rule of interpretation, given Article 1(3) of the Software directive. Briefly, it is conceivable that a database component of a program could be protected under the database right.

Could the protection of programs as 'design rights' be a possibility, in response to the difficulties outlined. The design of a program is considered a very important element. It is unregistered design rights which cover the functional purpose of design. Yet, despite the advantages of a shorter period of protection thus encouraging the continued development of our information society, programs do not meet the requirements of 'comprising shape/configuration' and the right does not take account of the requirement of interoperability or decompiling; essential elements in protecting programs.

What is the logical choice?

Of all the potential methods of protection available to computer programs that have been considered, none provides a problem free framework by which protection could be afforded taking into account the balance of interests involved. Copyright alone is certainly not the best means by which this could be achieved. As the Copyright Law Review Committee (CLRC) concluded, a sui generis regime in association with copyright law could fare the best. The importance of compliance with European and international obligations is fundamental to a pan-world, enforceable ‘level playing field’ and so the evolution of any new scheme would have to be enacted world-wide.

A new regime, based on the combined framework of a sui generis regime and existing copyright protection would necessarily eliminate the dark avenue of 'literary work', tailoring itself to the particular characteristics of the specific computer program in question. Changes in the law relating to database protection may provide an insight into this possibility and suitability in practice, with an increase of cases coming before the judiciary.

To determine whether copyright is a logical choice as the means of protecting computer programs it’s necessary to take account of the nature of copyright law as a whole and why it was chosen initially as the means of protection for programs.

Copyright law is clearly not a perfect scheme, and not even the best. However, the growth of an international interest in ensuring strong global trade is the priority of any country which places economic security as its priority. The policy goal of maximising knowledge in the public domain, balanced against protecting individual interests and creative will31), as well as the balance of the interests of the various suggested forms of protection had a great influence on this selection. The advantages of copyright in that no new drafting/legislation is required also provide a strong argument for the choice of copyright as a logical one, although when cases are considered on individual merits, as in a sui generis regime, individual cases would be likely to generate a great deal less controversy.

The development of computers and programs to run them is still on a fast track. Until there is a sufficiently developed understanding of what exactly computer programs are, what aspects should be protected, and how, the question will remain a contentious one for those on different areas of the computer program protection playing field.

References

Bainbridge, D (2000) Introduction to Computer Law
Computer Associates International v Altai, Inc 982 F.2d 693 (2d Cir. 1992)
Copyright (Computer Programs) Regulations (1992)
Copyright and Rights in Databases Regulations (1997)
Copyright Act (1956)
Copyright, Designs and Patents Act (1988)
European Union Copyright Directive (2001/29/EC)
Whelan Associates, Inc v Jaslow Dental Laboratory, Inc 479 U.S. 1031 (1987)


Law

1) International convention for the Protection of Literary and Artistic Works 1886 (Berne) (latest revision Paris 1971).
2) Union of Berne and the Pan-American union, The Montevideo Convention. Accepted by the United Kingdom in 1957.
3) Amended the Copyright Act (1956)
4) CDPA.s.303 (2) schedule 8. 'Literary Work:' s.3(1)(b).
5) The Software Directive (Council directive 91/250).
6) (SI 1992/3233
7) Designing Appropriate Protection for Computer Programs: A. Christie 488 [1994] 11 EIPR.
8) For example, the computer software industry and its associations estimated, even in 1996, that losses directly attributable to piracy alone amounted to $500 Million nationally, and $15 Billion world-wide.
9) Their raison d’etre to afford either information and instruction, or pleasure to humans: Computer Edge v Apple computer (1986) 161 CLR 171, at 182, 192 and 201 and Hollinrake v Truswell [1894] 3 Ch. 429, at 428.
10) Copyright protects the expression of an idea but not the idea itself.
11) Computer Edge case, per Gibbs L.J., It seems to me a complete distortion of meaning to describe electrical impulses in a silicon chip,…as a literary work.
12) D.S. Karjtala, Copyright, Computer Software, and the New Protectionism [1987] Jurimetrics Journal 1, Function: to convert the program’s instructions into object code, which in turn is intended to convert hard-wired digital circuitry into a general purpose computer.
13) This error was compounded by Article 10(1) of the TRIPS (Trade-Related Aspects of Intellectual Property Rights).
14) CDPA 1988 ss. 16(1) and 17(1).
15) CDPA 1988 s. 50B: exception for decompilation. Software Directive 1991, Arts. 5(1), 9(1); CDPA 1988, ss.50A(2), 50 C: exception for infringement 'necessary for…lawful use'. Software Directive 1991, art. 5(2); CDPA 1988, s.50A: exception for lawfully making 'necessary' back-up copies.
16) John Richardson Computers v Flanders and Chemtec [1993] FSR 497; and Whelan Associates v Jaslow Dental Laboratory 797 F. 2d 1222 (1986).
17) Copyright Protection of Computer Software: M.Grewal 454 [1996] 8 EIPR.
18) CDPA 1988 s.16(3)(a) when read with s.17(1). Contrasted with the simpler to legislate on large-scale complete piracy of programs
19) Common Law principle in UK, applicable to the whole copyright field.
20) Enforced by the Software Directive, Art. 1(2
21) 982 F. 2d 693 (1992) (C.Apps. 2d Circ.). The case involved the issue of reverse engineering.
22) [1994] F.S.R. 275
23) See case of Autodesk v Dyson (No.1) (1992) 173 CLR 330 for example.
24) The Computer Edge case demonstrates this.
25) Logic embodied in hardware. (Case-law: Autodesk case, conflicting decisions).
26) For example, IBM v Commissioner of Patents (1991) 22 IPR 417
27) Outcome of the Board of Appeal hearings appear to represent a move toward the allowance of such computer program claims.
28) Fujitsu Ltd’s Application ([1996] RPC 511
29) Marketable commodity in their own right.
30) The CLRC-ideal regime, when tied together with copyright.
31) There has been an aspect of shifting, in the eyes of the legislators, and potentially the judiciary, from creative will to intellectual effort.

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