Copywrite and Computer Software

Sagara P Samarawickrama – B.Tech(Eng) , LL.B  Attorney At Law

Protecting copyright in software is an issue that attracts much attention. While much is made of the fact that an effective protection strategy needs to be both legal and technical, legal commentators frequently gloss over the detail of available technical protection strategies. Technical commentators assume a level of programming familiarity which a general audience may not, and frequently does not, possess

Software piracy is the illegal use, duplication or distribution of a software product without the permission of its owner, violating copyrights or intellectual property rights. Current laws protecting software copyrights are based on the agreement on Trade-Related Aspects of Intellectual Property Rights as part of the World Trade Organization agreements

It is evident that these provisions have provided a firm legal basis for the protection of software copyrights within the software industry. In view of the proliferation of illegal copies of software available on the Internet, it appears however that legal protection alone might not be sufficient. The legal right to software protection does not provide complete power or control. The argument is well known. No one has a right to enter your house without your consent. The inviolability of your house is protected by law. Nevertheless, you prefer to have a lock in your door. Although software products are adequately protected by law, it is prudent to lock or protect software against piracy ascomputer software can be copied and distributed easily.

Software is a term which is much too broad to use in the application of copyright protection. Instead copyrights are applied separately to graphics or other design elements, site mapping, source and object code, algorithms, program or other technical descriptions, data flow charts, logic flow charts, user manuals, data structures, database contents, almost anything written. To

apply copyright law the specific thing to be protected must be clearly identified. While copyright law protects against the literal copying of graphics or other designs, source or object code, text or documentation, the protection of the web site or program structure and other elements from non-literal copying may be more problematic.

Many have argued that patents, not copyrights, are now the only way to give adequate protection to the most important aspects of software. This may be true because the idea behind a particular algorithm is much better protected as a patentable method, than as a narrowly limited expression in copyright law. Most software designers are interested in preventing others from stealing the core methodology used in their software. As such, a patent on the software could be obtained. The principal benefit of protecting computer software through a patent system lies in the strength of protection that is provided by a patent.

Copyright Laws criminalize the so-called software piracy, or the unauthorized use of software. Such copyright infringements include the illegal duplication of copyrighted software, or the installation of copyrighted software on more computers than authorized under terms of the software license agreement. When an individual or institution purchases software, they only purchase the right to use the software. The copyright belongs to the developers of the corporation which produces the software.

One can of course argue that irrespective of contemporary advances in technology, copyright remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works, and that absent legal protection, many valuable books and pieces of art would not be created. This interest is arguably served even by repeated extension of copyright terms to encompass multiple generations beyond the copyright holder’s life, not only because many authors and copyright holders are corporations, but also because the right of an author’s heirs to continue to profit from a protected work may provide a substantial part of the incentive to create.

One counter-argument to this, however, is the recent success of free software projects. These popular products have demonstrated that quality works can be created, even in the absence of copyright-enforced monopoly rents. It should be noted, however, that these products still use copyright in order to enforce their license terms, even if those licenses are not for monetary

gain.

Copyrighted works replicated onto digital media are easily and trivially copied via file sharing, and those who do this routinely break copyright laws hundreds or thousands of times, typically with minimal thought or concern. Attempts to prevent this have been largely unsuccessful, and file sharing almost never results in severe consequences for the violators. While producers of

copy righted material often attribute losses in their sales to online copying, yet they generally continue to produce material and to make profits. This lack of apparent effect has been gradually eroding the belief that copyright is indispensable.

The primary purpose of any recommendation would be to harmonize laws globally and to create a single universal statute. There are ambiguities and inconsistencies in the right of reproduction, on communication to the public, and on exceptions to copyright. A good example is set out in the WIPO Copyright Treaty (WCT) of 1996, which aims to protect computer programs by copyright. Even though there are 54 Contracting Parties to this Treaty, and even though the Convention of Cyber-crime of European Union refers to theTreaty and provides for the penal sanctions, this is still a regional regulation. What is needed is a single global framework to cover the problem in its entirety.

INTELLECTUAL PROPERTY:

 

Everything in cyber-space is composed of bits, the binary code, that is the foundation of computing. In their digital form, images, music, video, and text are perfectly reproducible; not just once, but an infinite number of times. There is no degradation to limit the value of duplicate copies. With digital media, all copies are originals.

Intellectual property is a legal term that refers to industrial property and to copyright and related rights. Industrial property comprises the protection of patents, trademarks, industrial designs, and geographical indications. It also includes the protection of utility models against unfair competition or the protection of undisclosed information. Trade secrets are protected, as they area type of property or asset, just as valuable or even more valuable than physical or real property. The value of intellectual property assets relative to physical assets has increased because of the importance of technology and creative works in the modern economy. Intellectual property consists of new ideas ,original expressions, distinctive names, and appearance that make products unique and valuable. Intellectual property is often traded (or licensed) in its own right without trading in the value of an underlying product or service, by means of patent or other intellectual property licenses from a rights owner to another.

The character of the intellectual property system is evolutionary and while the nature of the rights themselves remains relatively constant, the manner by which they are expressed and exchanged is constantly adapting to developments in the underlying technologies. The invention of, in turn, the printing press, phonograms, radio and television broadcasting, cable and satellite transmission, videocassette recorders, compact disc (CD) and digital versatile disc (DVD) technology and now, the Internet, has affected both the form and the substance of intellectual property rights. Intellectual property has gained importance in this digital environment as, increasingly, business assets are reflected in intellectual as opposed to physical property. The value of many online companies, for example, may be found in their vast databases ofcustomer information, which may be the subject of intellectual property protection.

This migration of intellectual property onto the Internet can be seen with respect to each species of rights. In the field of copyright, vast numbers of works of literature, film and art, and notably computer programs, have already been transferred to the digital environment. Software, protected as a form of intellectual property by patent and copyright law, underlies the operation of all digital technologies. Systems software, including utilities and operating systems ,enable our computers to operate, while utilities software provides us with the programs that make the digital networks so useful. Much software is protected by intellectual property law, and yet its theft is endemic.

Software Copywrite Protection

 

The finished code of a computer program is the culmination of a long process involving the creation of a number of preparatory (and intermediate) works. For example ,the analysts and programmers working in the development of new program usually will produce specifications, flowcharts, diagrams, layouts of menus ,screen displays, and reports and other materials

In Japan Capsules computers (UK) Ltd V Sonic Game Sales Whitford  J accepted that these and other ancillary materials, such as music generated by a program, could be protected by copy write.

Copying of a computer program can be literal, where the program code itself is copied, in which case the two programs are written in the same computer language. Alternatively, copying can be non-literal, where elements of the program such as its structure, sequence of operations ,functions, interfaces and methodologies are copied but the program code is not diretly  copied. The two programs maybe written in the same language or in different programming languages. The laws recognition of non-literal copying is important because otherwise it would be too easy to defeat copy write protection of computer programs.

Literal copying

 

Literal copying is relatively easy to test for infringement. In essence there are three axiomatic questions for the court: First does copywrite subsists in the claiment’s program? Secondly, has the defendant copied from the claiments program? Finally, does the part taken by the defendent represent a substantial part of the claimant’s program?

if the answer to these questions is in the affirmative then , unless defendent has defence in his action fall within the permitted acts, infringement is proved. In practice, the answer to the first question will seldom be negative. Even relatively small program will be the result of programmer skills, experience and judgment.

An important case involving literal copying is Ibcos Computers Ltd v Barclays Mercantile highland Finance Ltd (1994). The defendent P, a freelance programmer , wrote an application program ,ADS, for keeping track of agricultural machinery. This was marketed by PK Ltd (later Ibcos) by whom P was subsequently employed. When P left PK ltd he wrote a suite of programs, ‘Unicorn’ designed to compete with ADS. P wrote some file transfer programs to enable each customer’s data to be rearranged from files with the ADS format to files with the Unicorn format without the need to rekey it. In Ibcos, the court took a stright forward approach in testing for infringement by asking four questions

• What is the work or what are the works in which the claiment claims copywrite?
• Is each work original?
• Was there copying from such work?
• If there was copying, has a substantial part of that work been reproduced?

Jacob J said that not only did each individual program in the suite have copyright ,but also the whole package, the program of all programs ,had a seperate copywrite as an original compilation, in the same way as any other original compilation. The question of whether there was was infingment turned not just upon whether P took literal bits of code and program structure within an individual Program, but also whether P took the program structure and the design features as a whole, as these would be integral to the work as compilation. Jacob J affirmed that there was copyright in the source code and also found there had been disk-to-disk copying in part because of spelling mistakes, and redundent and unexplained code common to both programs. He was not pursuaded by P’s argument that the commonality between the two programs might be ascribed to P’s ‘style’ as programmer. He concluded that a substantial part of the ADS suite had been infinged as a compilation, by the taking of the program structure. He also found literal copying of a substatial part of the seperate programs, as well as of the file-transfer programs.

Non -literal copying

 

In Ibcos Computers Ltd v Barclays Mercantile highland Finance Ltd (1994) the court also considered(obiter) the question of non-literal copying. Non-literal copying occurs when what is copied is not the actual code(either source or object) of the program, but rather its function, structure   or ‘look and feel ‘ ,for instance ,the screen displays or menues. As usual ,where literal copying is not an issue ,the problem for the the court is to decide whether what is copied is the idea behind the program or its expression. In Richardson Computers Ltd v Flanders(1993), the court had adopted the abstraction and filteration approach which had been developed in a number of US cases, most notably Computer Associates International V Altai (1992).Briefly,this approach entails identifying the general ideas behind the work and filtering out those abstract ideas to discover a ‘core’ of material, which is protected by copyright. R produced a BBC stocktaking program for pharmacists, and engaged F to develop the program, first as an employee and then as a consultant. F adapted the BBC program for IBM computers(Chemtech) and, when no agreement could be reached with R ,planned to market Chemtech independently. F did not have access to the source code when crating Chemtech and had not copied it.The court decided that it was possible to infringe a program by copying its structure and ‘look and feel’.In order to discover if there has been copying, the court posed three questions;:First,is the program as a whole entitled to copyright protection; Second,are the similarities between the programs as a result of copying; and Third does any copying identified at the second stage amount to the copying of a substantial part? The court then applied the abstraction filteration test to answer the third question, concluding interalia, that the parts of the original program which related purely to function and which were similar to Chemtech, could not be infringed. Indeed .although there were 17 similarities between two programs ,using these criteria ,only three were found to infringe. Many have taken this result as confirmation that judgments based on the absrtraction, filteration and comparision test may weaken protection.

If copywrite protects expressions but not idea, it is obviously important for a court to be able to distinguise between them,perticularly the law gives protection to certain non-literal elements of copyright works. However ,US law goes further than that in the UK in denying protection to tangible form if it is deemed to be so closely associated with the idea underlying the work that there is no alternative way of expressing it.Hence , it is even more important in the USA to distinguish between protected expression and unprotected data

‘

This issue was considered in the context of computer programs in the case of Whelan Associates Inc V Jaslow Dental Laboratory Inc(1987) FSR1 the first so-called ‘look and feel’ case.It was said that ,in relation to a computer program designed to carry out a mundane task ,anything that was essential to the task was ‘idea’ while anything that was not essential and could have been written in different ways was ‘expression’.If theses latter parts were copied ,then the copyright would be infringed because the expression being copied. If the programmer had no option but to write a part of the program the way he did because the task to be achived dictated its form and content then that part was ‘idea’ and not protected by copyright.Similarly,the purpose of a utilitarian program was ‘idea’ and the structure of the program,if there was several different possible structures that could have been adopted,was ‘expression’.Consequently, not just the actual program code but the structure of a computer program can be protected by copyright if, because of similar strucure,the ‘look and feel’ of the programs are similar

whelan and subsequent cases can be expained by the need to deal with non-literal copying of computer programs,where the first program has been unfairly used as a basis for a second program but there is no literal similarity in the actual program code because different programming langfuages have been used. Although the Whelan test proved troublesome to apply in practice,, it has been superseded by a more sophisticated test which still does nothing to aid predictability.The newyork court of appeal strongly criticised Whelan in Computer Associates International Inc V Altai Inc as taking insufficient account of computer technology .In

Computer Associates the defendent had produced a program known as ‘Oscar’, a job scheduling program for controlling the order in which tasks are carried out by computer.It had a common interface component allowing the use of different operating systems, and this part had been added by a former employee of the claiment which had a similar program and interface. The former employee  was very familier with the claiment program and had even taken parts home to work on. As soon as the defendent company realised the problem,it agreed to pay $364,444 in damages and engaged other programmers to rewrite the infringing parts of the program.The claiment still sued in respect of the defendent’s new version,but the judge held there was no infringment.The judgement of the court was given by judge Judge Walker, who laid down a new three-stage test for non-literal copying as follows and as shown in the following figure.

1. Abstraction :discovering the non -literal elements by a process akin to reversr engineering,begining with the code of the claiment’s program and ending with its ultimate function. The process traces and maps out the designers steps and produces ,inter alia structures of differing detail at varying levels of abstraction

1. 2.    Filtration – the separation of protectable expression from non-protectable expression material.Some elements will not be protected being ideas,dictated by or incidental to ideas, required by external factors or taken from the public domain.These elements are filtered out vleaving a core of protectable material- the program’s ‘golden nugger’

 

1. 3.    Comparision – a determination of whether the defendent has copied a substantial part of the protected expression – whether any aspect has been copied and ,if so, whether this represents a substamtial part of the cliaimant program

Code of claimant’s program

                                             Abstraction

Non -literal elements eg strutures,sequence,menues, sequence,sort routine,databse codes,line editor,screen layouts

Filteration

Protected elements (golden nugget)

Defendent’s Programme

Comparision

In Ibcos Computers Ltd v Barclays Mercantile highland Finance Ltd (1994) ,the court without explicitly disapproving Richerdson Computers Ltd vs Flanders(1993),none the less took a divergent approach to non -literal copying .First ,it overcame some of the problems posed by non-literal copying by treating the overall program in ibcos as a compilation. The question was then simpler; had the structure and ‘look and feel’ of the program been copied? if it had,there might be infringement if a substantial part had been taken. The court followed Richardson in saying that a substantial part of the program need not be restricted to the next of the code.But it held that the abstraction/filteration test of the core of protectable expression,which it condemned as overcomplicated,was not helpful in english law. In perticular,it did not agreee that if there was only one way to express an idea then that expression was not subject to copyright. Jacob J stated:”the true position is that where an “idea” is suffiently general, then even if original work embodies it ,the mere taking of the idea will not infinge. But if the “idea’ is detailed,then threre may be infingment. Its a question of degree. It is necessary to see if there has been an ‘overborrowing’ of skill, labour and judgement which went into copywrite work,and this should be left to the judgement of the court.

The general approach of Ibcos to both literal and non-literal copying was followed in Canter Fitzgerald International V Tradition UK ltd (2000).The claiment (CFT) and Tradition carried on buisness as financial brokers. H,the third defendent ,was dismisssed as the claimant’s managing director. He was then employed by Tradition, together with other ex-employeees of the claimant ,to set up a computer system for bond-trading. The resulting system had similarities to CFT’s own system, for which the defendents also had some responsibility. The defendents admitted having had a copy of the claimant’s system which they used for reference when they produced Traition’s system.CFT sued for copyright infingment and breach of confidentiality. In his judgement,Pumfrey J approved the four questions posed in ibcos.He then went on to consider the relationship between the originality of work and the substantiality of the copying in relation to computer software. He warned that it is not possible simply to apply those principles developed in relation to literary works ‘addressed to humans’ to software programs whose purpose is to make a machine function. Since a softwarte program which contains any errors will not run ,this might suggest that every part of a computer program is essential to its performance, and so every part is a substatial part. In fact like other literacy works, a computer program was infringed if the alleged infringer work took a part of the work upon which a substatial part of the author’s skill and labour had been expended. The court then compared the algorithms or sequence of operations in a computer program to the plot of a novel or play, and suggested that taking a plot without taking the exact mode of expression might amount to infringment. Similarly ,the copying of algorithms or sequences of operations from computer programs might be sufficient to amount to infingement of copyright in the program. Further ,it was now generally accepted that the  ‘architecture’ of a computer program, a ‘vague’ term which may refer to the overall structure of the system at a vey high level of abstraction or,as in ibcos, the program strcture ,is also capable of protection, if a substatial part of the programmers skill,labour and judgement went into it. In Cantor what was alleged to have been copied was not the system at such a high level of abstraction, but inbdividual modules of the system. The court assesed the substantiality of copying against the collection of modules viewed as a whole. Substantiality was to be judged in the light of the skill and labour in design and coding which went into the piece of code which it was alleged was copied.it was not determined by whether the system would work without the code or by the amount of use the system made of the code.On that basis,the court found that the defendents had infringed in some areas and not others.

In Ibcos and Cantor,the defendent had access to the source codes of the programs which were alleged to have been infinged. This was not the case in Navitaire Inc Vs esyJet Airline Co Ltd(2006).The claiment had designed an online booking system(‘OpenRes’) for the defendent.The parties fell out ,and the defendent developed its own online bookingsystem system(‘eRes’),which was designed to have the same ‘look and feel’ as OpenRes. The defendents did not have access to the ‘OpenRes sourcecode and the programs had a different architetecture and language.There was no literal copying. Instead the claiment alleged three areas of ‘non-textual’ copying of its software :its ‘look and feel’;its user command structure;and certain display screen screens.The claiment succeeded only on the third claim.Pumfrey J found that the graphical User Inerface (GUI) screens,being constituted by complex codes which gave the screen a consistent appearence,qualified as artistic works and had been infinged.However ,he did not find infringment in relation to the two other claims.He held that the individual commands did not constitute copyright works,following the de minimus principle.Futhermore,the the commands sereies were equivalent to a computer language,which was not protected under software Directive,rather than to a program,which was. Nor was the collection of commands protectable as a  compilation as there was no author and no overall design to create a compilation. Turning to the ‘look and feel claim’,the claiment alleged that the ‘buisness logic’ of OpenRes had been appropriated.The issue according to Pumfrey J was that ,unlike traditional works,two completely different computer programs can produce an identical result. Furthermore, again unlike cases involving traditional literacy works, the copyist in this case did not have access to the allegedly infringed work .In Pumfrey J’s view what was being alleged was not ‘non-textual’ copying,but ‘copying without access to thething copied,directly or indirectly’.He identified the problem of establishing infringment in the present case as being ‘a lack of substantiality’ and ‘the nature of the skill and labour to be protected’.The OenRes program invited inputs,outputted results and created a record of passenger reservations,all of which were excluded from copywrite protection

The approach to non-literal copying taken in Navitaires was recently approved by the Court of Appeal in Nova Prroductions Ltd v Mazooma Games Ltd(2007).Critics have viewed these desitions as narrowing the protection afforded to computer programs,since non-literal copying will now only being found if the defendent has had access to the claiment code.Others have welcomed the decisions as drawing the correct line between ideas,such as the buisness logic of a program,which will not be protected and there expressions,which will

References:

Intellectual Property Law- Oxford University Press -2008 3^rd edition

The Law Of Cyberspace -Ahmad Kamal-First Edition 2005