A theme running through copyright law is that it is constantly adapting, whether in response to advances in technology or due to shifting perceptions regarding the extent of intellectual property protection. Computer technology developments with which copyright law has had to grapple include, but are not limited to:
- computer software programs;
- the circumvention of technological protection measures;
- databases; and
- the Internet.
Computer programs have been protected by copyright in the United Kingdom since 1988, when the definition of ‘literary work’ in the Copyright Designs and Patents Act 1988 was extended to include ‘a computer program’ and ‘a database’.
An international consensus that computer programs should be protected by copyright emerged during the 1980s and was confirmed by Art 4 of the TRIPS Agreement and Art 4 of the 1996 WIPO Copyright Treaty.
Since computer programs and databases are protected under the CDPA 1988 as literary works, the copyright owner can exercise all the exclusive rights attaching to literary works. In practice, the most valuable rights are those of reproduction and adaptation.
This chapter considers the nature of the legal protection afforded by the copyright law to certain aspects of computer technology including infringement of copyright via the Internet. The patentability of computer software is also problematic but is not covered in the text.
Critically discuss the extent and effectiveness of the copyright law mechanisms that exist to protect computer software.
This is a broad question that requires the student to deal with a lot of material. In answering this question, it is important to examine the legislation, reported decisions relating to computer software, any specific regulations and any infringement issues that may apply.
- Original literary works (s 1(1) CDPA 1988).
- Section 3(1)(b) and (c) CDPA 1988.
- Copyright (Computer Programs) Regulations 1992.
- Infringement by literal copying and Ibcos Computers v Barclays Mercantile High Finance (1994); Cantor Fitzgerald International v Tradition (UK) Ltd (2000).
- Infringement by non-literal copying and Navitaire v Easyjet (2004) and (2006).
- The scope of copyright protection given to computer programs afforded to computer programs under Art 1(2) of the Software Directive and the recent referral of nine questions to the European Court of Justice by Mr Justice Arnold in SAS Institute v World Programming Ltd (2010).
- Defences under ss 50, 50A, 50B and 50BA CDPA 1988.
- Sections 17, 18 and 19 CDPA 1988.
It is now possible to say that computer software has been brought under the umbrella of copyright law relatively smoothly by way of a concerted effort on the part of the legislature and the courts to take the necessary steps to adapt copyright law to encompass this new form of expression. A piece of computer software comprises a program, which is a series of instructions expressed in code, intended to cause a particular result when used in computer hardware.
Computer programs are afforded copyright protection as a category of literary work and enjoy copyright protection under ss 1(1) and 3(1)(b) CDPA 1988. Also protected is preparatory design material for a computer program under s 3(1)(c). The Copyright (Computer Programs) Regulations 1992 amended the CDPA 1988 to apply to computer programs whenever created.
The normal copyright rules apply to computer programs. For example, in order to be an original literary work, the computer program must be the product of a substantial degree of skill, labour and judgement by the author: University of London Press Ltd v University Tutorial Press Ltd (1916). However, the CDPA 1988 does not define computer programs and this allows for law to adapt to evolving forms of computer software and/or technology. Case law suggests that for ‘originality’ to be found in a computer program, the court is particularly concerned with certain aspects including the algorithms or operational sequences and the structure or architecture of the program.
Copyright only protects expression and does not protect ideas. For example, the idea for a program to electronically manage a dental laboratory and the functions the program is to achieve are not protected by copyright: Whelan Associated Inc v Jaslow Dental Laboratory Inc (1987). However, the code lines of the program, its algorithms, operational sequences, file structure and architecture may be protected by copyright once it is ‘recorded in writing or otherwise’ (s 3(2) CDPA 1998). This principle was explained in Ibcos Computers v Barclays Mercantile High Finance (1994) when Jacob J stated that ‘UK copyright cannot protect the copyright of a mere general idea, but can protect the copyright in detailed ideas.’ Fixation on a hard or floppy disk or hard-wired in a microprocessor in the form of micro-code or micro-programs would meet the fixation requirement under the Act. However, where there is only one way for a computer program to be expressed so as to achieve a particular technical result, this will not be protected by copyright: Kenrick v Lawrence (1890), cited in John Richardson Computers Ltd v Flanders and Chemtech Ltd (1993). This part of the program can be freely copied.
Section 11 of the CDPA 1988 provides that the author of a work is the first owner in any copyright, unless the author is an employee who creates the work in the course of employment.
INFRINGEMENT: LITERAL AND NON-LITERAL COPYING
As with other literary works, a three-stage test for copyright infringement is applied:
- Does the work attract copyright protection?
- Has there been copying of the elements protected by copyright?
- Was the copying substantial?
The computer program must be assessed as a whole when considering whether copyright infringement has occurred. The CDPA 1988 protects computer programs, not individual files or parts of a program. Similarly, it is a journal article as a literary work that is protected, not each individual sentence or paragraph. This is essential for the purpose of analysing cases in order to determine whether substantial copying has taken place. Separate programs can be combined into one program and this will be treated as a compilation. In MS Associates v Power (1988) the court identified two issues in relation to proving copying:
- the claimant has to prove that the defendant had access to the software program; and
- there are similarities between substantial parts of the programs.
The fact that two screen displays are similar is not proof of copyright infringement – this is because the copyright protects the program itself, not the results obtained from it.
The legal protection for computer software raises two main concerns:
- literal copying defined as direct copying or duplication (for example games software, operating systems software and popular applications software);
- non-literal copying, usual of bespoke software for a business application (for example booking a holiday on the Internet) that is done by creating modified software to emulate the functions and operation carried out by the first software but in a different way.
It is (b) above that is the most troublesome for copyright protection law. The new software may have been created without access to the source code of the first software, but the first software has been relied on in order to gain an understanding of what it does and how it does it. This type of copying is known as non-literal or non-textual copying. It is possible to do this without infringing the copyright in the first computer software, by relying on some of the permitted acts that apply to computer software. However, it is also possible to indirectly infringe the first software’s copyright if the infringer appropriates elements of the first computer program not explicitly contained in the first software.
In Ibcos, it was found that there were many instances of literal copying, for instance: common spelling mistakes; similar headings; redundant and unexplained bits of code which appeared in both programs; and that the allegedly infringing program contained a part of the original program in its source code while it did not actually use this part. Quantitative and qualitative issues were considered. It was held that substantial copying had occurred in relation to program structure, several individual parts of the computer program and in the file transfer programs.
However, more recently in Navitaire v Easyjet (2006) (a case involving non-literal copying), the court decided that in certain circumstances there would be no protection for the functionality of a piece of computer software against a new program that set out to emulate it. The facts were that Navitaire had licensed its software for a ticketless booking system to EasyJet since 1996. In 1999, EasyJet asked BulletProof to write a piece of software to perform essentially the same functions as the Navitaire software. The new software system was nearly identical in appearance and function to the Navitaire version. EasyJet was, therefore, no longer dependent on Navitaire for a software licence, upgrades and maintenance. EasyJet could also try to license the new system to third parties in direct competition with Navitaire. Navitaire sued EasyJet for copyright infringement based on:
- the substantial similarity between the ‘look and feel’ and overall functionality of the Navitaire software;
- the detailed copying of individual keyboard commands entered by the user to achieve particular results; and
- the copying of certain forms of results in the form of screen displays and reports, including icon designs so that the user interface looked the same.
Navitaire failed in its claim for non-literal copying. Curiously, the judge compared the software program to a pudding and explained that a chef who by trial and error manages to emulate the pudding does not infringe the copyright in the written version of the recipe. However, Navitaire did succeed with its claim that sufficient skill, labour and judgement had been used to create the Navitaire screen layout and icons and that these had been infringed (as an artistic work). In summary, EasyJet was held to have infringed Navitaire’s copyright by reproducing a substantial part of the screen layout, regardless of the fact that the underlying source code was not found to have been copied. The practical effect of this decision was that EasyJet simply had to design new graphic interfaces to replace the infringing screens. The legal effect of the case indicates that the UK courts are currently unlikely to have sympathy for a claim by a software owner that the functional effects of their software have been copied where there has been no reproduction of the source code. It is the code that is protected by copyright, not the functioning of the software. Accordingly, the UK position as regards the extent and effectiveness of copyright protection for computer software is currently that copyright protection should not be artificially extended where there is no question of the source code being copied. However, in July 2010 the High Court reconsidered this issue in the case of SAS Institute v World Programming Ltd  and followed the decisions in Navitaire and Nova.
THE SAS CASE (2010)
In the SAS case it was alleged by the claimant (SAS Institute Inc) that the defendant (World Programming Ltd) had infringed copyright by indirectly copying the programs comprising the various components of its software system. It was also alleged that the defendant had infringed copyright of the claimant’s manuals. It was accepted that the defendant had not reproduced the claimant’s source code or any of the design elements of the program. The claimant alleged that this still amounted to copyright and based their claim on the interpretation and application of the Software Directive under English law. The Software Directive was implemented in the UK by the Copyright (Computer Programs) Regulations 1992 (SI 1992/3233), which amended the Copyright, Designs and Patents Act 1988.
Article 1(2) of the Directive provides that the expression in any form of a computer program is protected, but that: ‘Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.’
Recital 13 of the Directive states that: ‘only the expression of a computer program is protected and … ideas and principles which underlie any element of a program, including those which underlie its interfaces are not protected by copyright under this Directive.’ Recital 14 provides that, in accordance with the principle set out in recital 13, ‘to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected’. Recitals 13 and 14 have not been incorporated into English law under the Copyright (Computer Programs) Regulations 1992.
Justice Arnold upheld the decision in Navitaire that Art 1(2) should be construed as meaning that copyright in computer programs did not protect either the functionality of a computer program, its interfaces, or its programming language. He decided that there had been no breach of copyright in this instance. However this was not the end of the matter as, in light of the claimant’s interpretation of the Software Directive, the High Court decided to refer nine questions to the European Court of Justice to determine the correct interpretation of the Directive into English law. Until this was done Arnold J was unable to make his judgment.
The questions sent to the ECJ include whether programming languages, interfaces and functional aspects of software are excluded from protection under Art 1(2) of the Software Directive and the extent of the exclusion from infringement for acts of observation and testing under Art 5(3), which reads:
the person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.
In conclusion, although it is likely to be a few years yet, if the ECJ reverses the Navitaire and Nova decisions and provides additional protection to computer software developers, this may lead to a less competitive industry, as developers would struggle to write software that imitates established products without infringing the intellectual property rights of the software owners. As it stands, the current position that copyright only protects the underlying source code of a computer program, and not its functionality and interfaces, continues to apply. The ECJ guidance on the interpretation of the Software Directive is anxiously awaited by the software industry.
Avoid computer technology jargon and focus on a legal analysis of the nature of copyright law protection afforded to computer software as a copyright work.
Critically discuss the developing case law on the scope of copyright protection of computer software. In particular, review the recent developments in the SAS (2010) case and the referral of nine questions to the European Court of Justice by Mr Justice Arnold.
How does copyright law protect technological protection measures (TPMs) and has such protection adversely affected access to digital works?
This question needs to be answered in two parts. First, by establishing the current protection regime and then critically analysing the beneficial and detrimental aspects of the legal protection afforded to TPMs.
- WIPO Copyright Treaty and WIPO Performers and Phonograms Treaty.
- Part VII CDPA 1988; devices designed to circumvent copy-protection.
- TPMs and computer programs.
- Copyright infringement.
- Sony Computer Entertainment Inc v Edmunds (2002).
- Sony v Ball (2004).
- Defences and exceptions (s 296ZE CDPA 1988).
- Defences and exceptions (s 296ZE CDPA 1988).