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JILT 1996 (3) - Philip Redding

Report on the protection afforded Computer Software in the face of Computer Software Piracy

Philip A. Redding
LSWPREDD@livjm.ac.uk
Liverpool John Moores University


Contents

1. Aims
2. What is software?
3. Can software be patented?
4. What can we do instead?
5. Can we copyright it?
6. Is protection international?
7. So what is best? Does copyright do the job?
8. Remedies / punishment for infringement of copyright
9. UK / Hungary comparison
10. Conclusions
Appendix I
Appendix II
Appendix III
Bibliography

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This is a Work in Progress article.

Date of Publication: 30 September 1996.

Citation: Redding, P (1996), 'Report on the protection afforded Computer Software in the face of Computer Software Piracy', Work In Progress, 1996 (3) The Journal of Information Law and Technology (JILT). <http://elj.warwick.ac.uk/elj/jilt/wip/3lowry/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/redding/>


1. Aims

The aim of this report is to highlight the current levels of protection afforded to computer programs nationally and internationally within the legal framework. Computer software is an intellectual property protected under S3 (1)(b) Copyright, Design and Patents Act 1988 (CDPA), the Copyright (Computer Programs) Regulations [1992] (SI 1992/3233 which implements Council Directive 91/250/EEC) and relevant international treaties and agreements.

That protection mechanisms are required is in little doubt, especially since the computer software industry and its associations estimate that losses, directly attributable to piracy, amount to $500 million nationally, and $15 billion world-wide [1]. Some recent examples include an illegal 'Internet server' located in Stockholm believed to have transmitted $1.7 million worth of pirated software to Internet users world-wide. Another example of the scale of the problem involves a software pirate in the south of England who recently confirmed to a periodical, Computer Weekly, his ability to earn $4-5000 a month selling CD's of illegal games and business software. The scale of software piracy is immense and almost impossible to quantify but while researching an article for Computer Weekly [2], reporter Neil Fawcett acquired a CD which

'held more than 100 business applications, including, Windows 95 ; Windows NT; AutoCAD rel: 12; 3D Studio rel: 2.0; Microsoft Office, and much more.'

A further example was the availability of pirated copies of Windows 95 days before the official release by Microsoft and available at a fraction of the cost.

2. What is software?

Software is generally accepted to be any set of instructions made in to a program, or a suite of instructions, which can be installed or removed from the computer by the operator. Data is raw information which is not a set of instructions but is information required by the program to complete its function. This is only a general definition because there are grey areas such as the Gameboy and SEGA games which use protected programs for playing on their machines. If professionals in the industry have problems defining computer components how can we justifiably expect the courts and judges to do just that. The CDPA does not attempt any such definition, though the EC Directive does, see appendix III

3. Can software be patented?

Patent is a very desirable form of intellectual property because it gives the owner a monopoly in an invention, enabling him to exploit the invention for a number of years to the exclusion of other people. Patent has a long history and has developed as a means of protecting innovation which has a benefit to innovator and public alike. The process for granting a Patent is awkward, and is probably best put in the hands of a suitably qualified agent such as a 'Patent Agent' or 'Patent Attorney'. Once granted a Patent runs for four years and is renewable, at a cost, annually up to a maximum of twenty years. Patent gives the innovator a monopoly of that innovation in return for transferring details into the public sphere. These details include the fact that it is capable of industrial application, Section 1 (1c) Patent Act [1977] (PA). Thus we find that computer software is not patentable in its own right, but only as a part of an industrial process. This was identified in Diamond v Diehr [1981] [3] a case which involved a process for curing rubber, and included a computer program to control the curing temperature. The court found that the program was patentable only as part of the whole process. This form of identifying with an industrial process is also shown in Re Alappat [7/29/94] [4] where a patent application for a computer program which smoothed out a wave form on an oscilloscope was found to be patentable as a total package. Thus the court followed the decision in Diamond v Diehr [5]. The UK and European courts seem to have agreed with their US counterparts and the decisions followed Diamond v Diehr [6] in such cases as, Merrill Lynch's Application [1989] [7] which involved a software package for use on the money market and was found not to be patentable as a total package as it does not actually do anything as a whole system machine. Here the question concerned whether the inventive step comes from the excluded material, then the invention is not patentable because of P.A2E S1 (2). As Falkener J said

'If some practical (i.e. technical) effect is achieved by the computer or machine operating according to the instructions contained in the program, and such effect is novel and inventive (i.e. not obvious), a claim directed to that practical effect will be patentable, notwithstanding it is defined by that computer program'.

In Genetech Inc's Patent [1989] [8] it was the Court of Appeal which held that, inter alia,

'A patent which claimed the practical application of a discovery did not relate to the discovery as such and was not excluded by P.A. S1 (2), even if the practical application might be obvious once the discovery had been made'.

Thus it would appear that whilst a patent will be refused for a computer program per se (or any of the other exceptions in P.A. S1 (2)) it will be allowed if the purpose of the program is to bring about some practical effect and it is that effect which is the subject matter of the patent application. The subject matter should make a technical contribution to the state of the art. In Vicom Systems [1987] [9] a digital image processing package was patentable as it incorporated a complete system. Nissan's Application patent application 9027460.6 [10] highlights patenting succinctly.

The applicant sought to show that its application for a patent for a method, and apparatus, for evaluating designs composed of different design elements should not be refused and that it represented something more than a computer program per se or a scheme, rule or method for performing a mental act.

Section 1 (2)© PA declares that, inter alia, a scheme, rule or method for performing a mental act, .... or a program for a computer.... are not inventions for the purposes of the Act, and therefore not eligible for patent protection. However, in the case of computer programs, a patent may be granted where the operation of a program produces a technical effect which is itself an advance over the prior art.

Held: (1) The Principle Examiner found that the application was, in substance, an application for a patent of a computer program which produced no technical effect. As such it was not entitled to patent protection; (2) The function performed by the program represented a method for performing a mental act and was therefore not entitled to patent protection; (3) Patents which had been granted in particular areas were of no precedent value unless the patents relied upon had been legally tested.

Computer programmes themselves cannot be protected by patent law though there have been and will continue to be attempts to prove otherwise. Patents are slow, and tedious in their application and formulation taking approximately 4 years to be obtained by which time it is likely that the computer programme would be out of date.

4. What can we do instead?

There are options available to companies to protect their software against piracy, and each is best understood by explanation alongside the respective consumer market. The main areas which can be used for protection, are copyright law, contractual and or licence agreements, and password protection of some form.

A company who creates a specialised piece of software for a possible market of up to 500 users may deem it useful to retain all rights of ownership to that software, and can do so by leasing the software on a contractual basis and ensuring protection by copyright. Each user would then have an individually registered copy of the software and a log would be kept along with the signed documentation covering use and trade secret law.

A company which creates a piece of software for the large commercial market such as MS DOS (copyrighted to Microsoft and Bill Gates) needs to protect its commercial value in a slightly different way, by copyright, and, through the use of licence agreements which restrict the use of that software to whatever specified on the licence.

An author who creates a piece of software for the home and business market, such as a computer game retails in a different manner and has to protect his software in a different method. He generally sells his software through retail outlets and is looking for mass market penetration, and retail figures in the millions. Though the author may still protect his software by copyright his primary concern is to attempt to foil the pirating of the software on an individuals P.C. In practice he does this by shrink wrapping the item prior to sale and permitting access to the software via a password protection of some description. In my experience I have found that the best system is one which entails having the manual on hand when using the software, for at relevant times the password is requested, and it is found on a certain page, paragraph, line, and word. This means that in order to use the pirated software the whole manual has to be copied as well, and this proves time consuming and costly to most end users. The major problem with this markets legal resolution to piracy is timescales, in that the market changes rapidly and a mass marketed piece of software is likely to be out of date within a few years, if not months.

There is one area of protection which is legally ill-defined - where the author when writing the program includes in it a virus which inflicts damage on the P.C. using a copy of the software. Though there is little law to verify the legality of this protection I know of at least one piece of software which incorporates this function, and have been reliably informed this encoded virus managed to delete the entire contents a regional health authorities on-line storage system.

So a computer program is not patentable per se, yet is protected by copyright as a case of individual thought and effort. There is also the Law of Confidence and this can be remarkably successful in protecting trade secrets, and has no time limitation. Such success can be found in the food and drink industry with companies such as Coca-Cola and Kentucky, who have not copyrighted the ingredients nor attempted a patent but have relied on the law of confidence and secrecy to retain their market share. The Law of Confidence as a common law approach is remarkedly more adaptable, (its counterparts Copyright and Patent are statute bound) yet is restricted in its influence to that of confidentiality and reaches thereof.

5. Can we copyright it?

Copyright protects a wide range of works and has developed enormously since its early beginnings as a form of controlling printing in the early 16th Century. Copyright has a pragmatic approach an d its coverage extends to all manner of works regardless of quality, subject to some basic requirements, which are easily satisfied. Since the end of the 19th Century, tables, compilations and even code books have been the subject matter of copyright law. During the 20th Century, copyright has flourished and now includes under its umbrella: photographs, films, broadcasts, sound recordings as well as computer programs and works stored in or produced by or with the aid of a computer. The practical developments of copyright has been supported by judges who are generally sympathetic to the principle of protecting the results of a persons labour, skill and effort. As said in University of London Press Ltd v University Tutorial Press Ltd [1916] [11]

'...What is worth copying is prima facie worth protecting'

Protection of software by copyright law was first specified in English Law with the enrolment of the Copyright (Computer Software) Amendment Act [1985] (C(CS)AA). This amended the Copyright Act [1956] (CA) in its application to computer programs and computer storage by detailing in S1 (1) that the CA protection of a literary work shall be applied to a computer program. This was, however, only designed to offer computer programs protection as though they were a literary work. The C(CS)AA was itself repealed by the CDPA S303 (2) schedule 8 and the phrase computer program is specifically mentioned in the CDPA S3. The EC directive on the Legal Protection of Computer Programs has also been implemented with the Copyright (Computer Programs) Regulations [1992] (SI 1992/3233)

The CDPA states in Section 1 (1) that

'Copyright is a property right which subsists in accordance with this Part in the following descriptions of work:

  1. original literary, dramatic, musical or artistic works,
  2. sound recordings, films, broadcasts or cable programmes, and
  3. the typographical arrangement of published editions.'

Computer programs are specifically defined as a literary work in the CDPA S3 (1)(b), and S12 (3) specifies computer generated works.

Computer programs then can be protected by copyright and the common law of confidence, but not by patent. The period of protection for a copyright program is Fifty years from the end of the calendar year in which the author dies, and if computer generated then (S12) the period is again fifty years but from the end of the calendar year in which the work was made.

Having found that computer programs are protected by copyright for fifty years, question is raised of its effect and how this protection is supported by the law in general. Until recently the courts have followed the so called Abstraction - Filtration - Comparison test to find if there has been any breach of copyright.

This test was formulated in the USA Court of Appeals decision in Computer Associates Inc v Altai Inc [1992] [12]), after criticising the approach from Whelan v Jaslow [1986] [13] as being 'conceptually overbroad' and 'descriptively inadequate' [14].

The abstraction element of the test is an abstract analysis of the complete work, dividing the program into components and identifying the relationship between those various components, and their interaction.

The filtration test examines the result of the abstraction test and identifies those elements which fall outside the scope of copyright protection. This stage also identifies the common elements of the many programs which have the same characteristics, these include interfaces to other machines, design standards of computer manufacturers, and methods of operation such as the pull down menus found in Lotus Development v Borland [1995] [15]. The final stage is to identify any elements which fall into the public domain.

The comparison test is the stage where the program is compared with the allegedly infringing process. The comparison contains two elements, firstly to identify if any copying has occurred, and secondly, if so, whether this amounts to a substantial portion of the protected work.

Yet in 1993 the Chancery Division heard Richardson (John) Computers Ltd v Flanders and Chemtec Ltd. [1993] [16]. Ferris J held that

'....An English court,....should, rather than attempting to identify the program's levels of abstraction with a view to discovering the 'core of patentable expression', conduct a four-stage test designed to answer the questions. This would seek to answer the following questions:

  1. Whether the plaintiff's work was protected by copyright?
  2. Whether similarities existed between the plaintiff's and the defendant's programs?
  3. Whether these were caused by copying or whether other explanations were possible?
  4. In the event that copying was established, whether the elements copied constituted a significant part of the original work.' [17]

He thereby changed the criteria for testing for breach of copyright to a small degree. Given the complexity of computer software these days and the use of jargon by technical specialists in the computing field, I believe he has eased the definitions, yet retained the essential ingredients of the CDPA.

Ibcos Computer Ltd & another v Barclays Mercantile Highland Finance Ltd & others [18] clearly shows the current thinking on how breaches of software copyright are considered and identified.

Jacob J stated that under the CDPA [1988] the claim in copyright is to be tested as follows:

  • what are the work or works in which the plaintiff claims copyright?
  • is each work 'original'?
  • was there copying from that work?
  • if there was copying, has a substantial part of that work been reproduced?

By setting forth the tests taken directly from the statute, the court can avoid using aphorisms which can only serve as a guide.

The court said that mere evidence of copying was not sufficient to automatically breach copyright, a substantial part had to have been copied. In a computer program case, however, the court could not so readily assess the question of substantial part' unaided by expert evidence.

His lordship did not find going the route of the US case law helpful. UK copyright could not prevent the copying of a mere general idea but could protect the copying of a detailed idea. It was a question of degree where a good guide was the notion of overborrowing of the skill, labour and judgement which went into the copyright work. The matter had to be left to the value judgement of the court guided by expert evidence. In deciding the case, it was right to have regard not only to what Ibcos and PK's expert called 'literal similarities' but also to 'program structure' and 'design features'

Stephen Aldred commenting on Jacob J's judgement said the following should be noted:

  1. In holding that the general structure of the program as a whole was a copyright work as an original compilation, the judge rejected the idea that there could be no separate copyright in a collection of individual programs.
  2. Jacob J. rejected the idea that because a program fulfils a particular function and that function can only be achieved in a limited number of ways, it cannot be a copyright work. Little reliance should be placed on US cases in which copyright was denied to functional expressions of general ideas. This is not the position under UK law which distinguishes between 'general ideas' and the artistic or literary expression of those ideas which involved skill. labour and judgement.
  3. The judge emphasised that even if copying were proved, the plaintiff still had to establish that the defendant had taken a

    'substantial part' of the original program.

    Perhaps the most welcome aspect of the Judgement is its rejection of the abstraction and filtration test, developed in the US, and relied on in the recent case of John Richardson Computers. In assessing whether a substantial part had been taken, Jacob J placed reliance on Ibcos and PK's expert in assessing whether there had been an 'overborrowing of the skill, labour and judgement which went into the copyright work'.

It remains to be seen whether the approach of Jacob J will be followed in cases involving non-literal copying. In setting out the principles for analysing infringement, Jacob J was clear that non-literal copying could amount to infringement of copyright. The question to be considered is whether the non-literal aspects of a work are detailed enough to be copyright works rather than just general ideas. The court must then assess, with the help of expert evidence, how significant the part copied is to the program as a whole. There is no reason why future decisions should not follow this approach.

At a practical level, the case provides guidance for in-house counsel and programmers by identifying what is permissible in relation to a competitor's computer program. A programmer working for a new employer may write a program that performs the same function as that he has written for his former employer but he should be careful not to make use of any of the code from the previous program, even if that is taken from memory. For copyright owners, it is always useful to plant irrelevant material in their programs as this is a good way of assessing whether a rival's program is the result of copying. In IBM v Computer Imports Ltd [19].

Smellie J concurred with statements made in University of London Press Ltd [20] and Hollinrake v Truswell [21] and concluded that source code meets those tests since it is designed to give information and instruction, and it is expressed in print or writing, albeit writing that consists of numerous algebraic symbols and technological words. Thus copyright subsists in source code as a literary work.

He then went on to consider whether object code could also be a literary work. Referring to judgements in Cutting Edge [22] which said object code could not be a literary work as it was not written, thus could not be protected unless it could be argued that a literary work need not be in print or writing. He referred to s2 (2) of the Act:

'References in this Act to a literary, dramatic, musical, or artistic work include references to an adaptation of the work'.

Adaptation was defined in the Act as a translation. In the Canadian case of Apple Computers Inc. v Mackintosh Computers Ltd [23] Mahoney J interpreted this question of translation as being two human languages.

Smellie J concluded that there was no justification for restricting the meaning of translation to a conversion from one human language to another, and he applied the secondary meaning of translation, namely 'The expression or rendering of something into another medium or form'. Thus he found an infringement of copyright and found for IBM.

These cases mean that the test for over-borrowing is assisted with expert advice, while the IBM case covers the law concerning adaptation of the code, or its translation, providing that both source and object code are protected under international copyright legislation.

6. Is protection international?

Intellectual property protection has become such a major issue in the world today that, increasingly, national governments are looking to the international trade blocks to protect the rights of an individuals work. This is of immediate concern in the business sector dealing with computing and computer games software, which are international in their marketing strategy. Hence the increasing impact of copyright law in international law and trade agreements.

International protection of copyright began with individual agreements or understandings between one country and another whereby each respected the copyright of the other. Eventually, these proliferated into a web of differing connections so confused as to make enough countries want to sweep them away and replace them with one common agreement. The result was the Berne Convention - International Convention for the Protection of Literary and Artistic Works 1886 (Berne). The original Berne text has been revised seven times, each revision usually being identified by its place and date: Paris 1886; Berlin 1908; Berlin 1914; Rome 1928; Brussels 1948; Stockholm 1967; and Paris 1971. To revise an international convention, however, is not automatically to incorporate it into a nations law, and not all members are signatories to the same text.

Berne succeeded in its original major aim, for its member countries, in replacing individual agreements with one clear understanding. Its failure was that it remained essentially European, in particular, it did not attract the USA, which moved very slowly in establishing copyright relations with Europe, but established a Pan-American copyright union, The Montevideo Convention. In the early 1950's, UNESCO [24] set about devising a union that would combine Berne and Montevideo. The result was the Universal Copyright Convention (UCC), which was accepted by the UK in 1957.

The preamble to the UCC shows its ideas and aims saying the parties

'..Moved by the desire to assure in all countries copyright protection of literary, scientific and artistic works, ..Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, ..Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international understanding'.

It was also responsible for creating and enforcing the now universally accepted copyright protection symbol.

Such is the impact of this software piracy on business the international community have included copyright protection into the Uruguay round of GATT [25] talks recently concluded. See appendix I for the relevant area of the GATT agreement.

In a European context The European Patent Convention (EPC) allows the European Patent Office (EPO) to undertake central research and examination of a patent application such that a bundle of up to ten separate national patents can be awarded. The creation of the EPO and its harmonisation of patent laws within the EC identified a need for the harmonisation of the European Community's many separate system's of copyright protection. Within the arena of computer software protection this has led to the European Council directive 91/250/eec [1991], see appendix III, which should now be implemented throughout the European Union, thus creating a level playing field and enforcing the argument that international copyright protection is becoming the responsibility of the international trade blocks. Generally copyright lasts for the period of the authors remaining lifetime plus fifty years.

The Paris Convention 1883 set up a general framework for international co-operation, drawn up to guarantee reciprocal possibilities for protection in the convention countries. Among these provisions are:

  1. the same protection for nationals of other contracting states as it grants to its own nationals;
  2. the right of priority. Any person who has applied for protection in one of the contracting states enjoys a right or priority for twelve months for claiming similar rights in other countries;
  3. compulsory licensing and revocation. A compulsory licence (a licence not given by the owner of the patent but by the public authority of the state concerned) may only be given pursuant to an application filed after three or four years of failure to work the patented invention in the state in the absence of legitimate reasons for inaction. This represents a careful balance and is the most contentious part of the convention.

Twelve special agreements have been concluded so far under the aegis of the Paris Union which generally fill out that first agreement. The one of most importance is probably the 1970 Patent Co-operation Treaty which provides for a system of international search and preliminary examination which facilitates the national examination process. The World Information Property Organisation (WIPO) is the United Nation's (UN) specialised agency responsible for ensuring administrative co-operation among the various unions of states founded on the multilateral Treaties for dealing with the legal and administrative aspects of intellectual property. See appendix II for a summary of the relevant sections of the WIPO model provisions agreed in Geneva 1978.

7. So what is best? Does copyright do the job?

Copyright is supposed to balance effective protection for intellectual property rights in computer programs with the need for a free flow of information to encourage competition.

The use of copyright to protect computer software is the result of lobbying by companies to a perceived problem (in the mid 1970's) of home copying of computer games and counterfeiting of them in the Pacific Basin. Companies suffering from this 'piracy' were in the entertainment's business and already using copyright to restrict the use of their goods, and decided to use copyright to protect computer software.

While the 'literary expression' of computer code clearly comes under the Berne Convention, it is a rare program where the codes are the valuable aspect. It is usually the idea and not the expression which is valuable for computer software, that is the exact opposite of what copyright protects. Copyright has necessarily been stretched out of its true ambit to include the 'structure, sequence and organisation' (Whelan v Jaslow [26]) and the 'look and feel' (Broderbund Software Inc. v Unison World Inc. [27]) of programs. This has happened because the use of copyright for 'literary work' as such does not enable software to be protected in the way that the computer industry would wish. However the recent cases of IBCOS [28] and IBM [29] have shown the courts are extending the ambit of copyright protection in an attempt to fulfil this role, wished by the computer industry. But the ultimate protection of the mass marketed software must lie in the arms of the author providing ever more efficient methods of self protection from piracy.

The resultant legislation and protection varies around the world, in the EU and member states the copyright protection is for 50 years while the world-wide protection is for only 20 years and upwards, and the successful prosecution could result in damages or such compensation, and an injunction if successfully pleaded for.

8. Remedies / punishment for infringement of copyright.

Within the UK the CDPA created a criminal act for breach of copyright, which can result in penalties ranging from an unlimited fine and/or up to two years imprisonment, to a maximum of 6 months imprisonment or a fine not exceeding the statutory maximum on summary conviction, to an unconditional discharge and not guilty. The CDPA S96 restates the fundamental principle previously existing in S17 (1) C A that an infringement of copyright is actionable by the copyright owner and that relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as in the case of the infringement of any other property right. The area is covered in the CDPA by sections 96 to 107 and section 296 creating a right of action by way of secondary infringement.

A recent example of sanctions imposed by the court for piracy of computer software occurred at Trafford Magistrates Court [30] when Alan Pirie was found guilty on six counts of selling and possessing illegal software. Pirie was fined $1,000 and had all his software copying equipment confiscated.

9. UK / Hungary comparison.

As examples of national legislation and international agreements to counter computer software 'piracy' two countries will be compared, albeit superficially. Firstly the United Kingdom (UK) and secondly Hungary.

UK legislation is currently the CDPA and SI 1992/3233 which are discussed earlier and specifically cover computer programs. The UK is also a signatory to the Berne Convention, the UCC, as well as a founder member of the UN. It is also a signatory to the Uruguay round of GATT, as well as a member of the EU which has its own legislation (EC directive 91/250/eec). See appendix III for the relevant sections.

Hungarian legislation is currently governed by the 15/1983 Copyright Act and amendment to the 1969/3 Law, and numerous international agreements including 1994/1 Law signed in Brussels [16/12/91] to facilitate legal integration to EC norms and directives, primarily 91/250/eec on protection of computer programs. other agreements lie between the post Communist bloc countries, the Central - European free - trade Agreement [1992], European Free Trade Association [1993] and the USA [1993]. Hungary is also a signatory to the UCC, GATT (Uruguay round), WIPO and UNESCO.

10. Conclusions

Computer software is currently protected by the laws of intellectual property and contract, at least the business sector software is. The home market is probably best served by password protection. Businesses are aware of their vulnerability to virus attack, and subsequent financial loss but this does not appear to have penetrated the home market as yet. Arguably it never will have an impact because of its sheer size and lack of reporting in the media.

Legal protection is found by authors in their use of copyright law, and the use of contracts, and/or licenses. These contracts are generally specific to the user, while a licence agreement is specific to the use and copies permitted. Such a use of contract and license agreement is made by Microsoft when they sell copies of MS DOS software to the PC manufacturers in large numbers, while the licence agreement goes on to the end user of the PC.

The author of home market software must rely on password protection for his software, as the numbers of sales are vast, in the millions, and the program will be out of date very quickly.

Though the law of patent may change over the coming years its move to software protection is very slow. Recently there have been calls for changes to the UK law in this very respect and the British Computer Society (BCS) has produced a consultative document titled 'Patents for Software' and is seeking the views of its members before proposing such. C. Arnold has also argued for a change in the protection to be somewhat along the lines of the Copyright (Programme Formats) Bill [1995] [31]

Internationally there seems to have been agreement on the use of copyright protection, and the only difference between all the rules I have mentioned is the term of copyright, ranging from twenty to fifty years. Thus the protection of software is found in the following areas: Password protection for the home market; licence and contract for large business usage; licence, copyright, confidence and the law of trade secrets for very small usage.

Having concluded that protection is available in the face of software piracy, it only leaves me to mention that piracy is common both in business and the home. Almost every home with a computer now has at least one pirated piece of software, and I do not know of any company which does not also have some pirated software on its computers.

This side of business may change following recent reported raids by police and business associations, such as the British Software Alliance (BSA), Federation Against Software Theft (FAST), and European Leisure Software Publishers Association (ELSPA).

These raids have included writs being issued against Cow & Gate headquarters in Trowbridge and a world-wide clamp down by Microsoft on software piracy resulting in numerous writs world-wide [32].

APPENDIX I

The GATT Agreement on Trade-Related Aspects of Intellectual Property Rights. Uruguay Round GATT 15-12-1993

The GATT press summary, issued on the creation of the MTO (Multilateral Trade Organisation) and on the TRIPs (Trade-Related Aspects of Intellectual Property Rights) charter of the Uruguay Round of the Final Act, notes that the TRIPs Agreement recognises widely varying standards in the protection and enforcement of intellectual property rights and the lack of a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods have been a growing source of tension in international economic relations. To that end, the Agreement addresses the applicability of basic GATT principles and those of relevant international intellectual property agreements; the provision of effective enforcement measures for those rights; multilateral dispute settlement; and transitional agreements.

Part I sets out the general provisions as the same as Berne but includes a most favoured nation clause, a novelty in an international intellectual agreement, under which any advantage a party gives to nationals of another country must be extended immediately and unconditionally to the nationals of all other parties, even if such treatment is more favourable than that which it gives to its own nationals.

Part II states that with respect to copyright, parties are required to comply with the substantive provisions of the Berne Convention in its latest version (Paris 1971) though they will not be obliged to protect moral rights as stipulated in that convention. It ensures that computer programs will be protected as literary works under the Berne Convention.

The Agreement establishes a Council for TRIPs to monitor the operation of the Agreement and governments compliance with it. Dispute settlement would take place under the integrated GATT dispute settlement scheme.

APPENDIX II

WIPO Model provisions on the protection of computer software Geneva 1978

Section 1 - definitions:

For the purposes of this law:

  1. 'Computer program' means a set of instructions capable, when incorporated in a machine readable medium of causing a machine having information-processing capabilities to indicate, perform or achieve a particular function, task or result;
  2. 'Program description' means a complete procedural presentation in verbal, schematic or other form, in sufficient detail to determine a set of instructions, constituting a corresponding computer program;
  3. 'Supporting material' means any material, other than a computer program or a program description, created for aiding the understanding or application of a computer program, for example problem descriptions and user instructions;
  4. 'Computer software' means any or several of the items referred to in i) or iii);
  5. 'Proprietor' means the person, including a legal entity, to whom the rights under this law belong according to Section 2 (1), or his successor in title according to section 2 (2).

Section 3 - originality:

This law applies only to computer software which is original in the sense that it is the result of its creator's own intellectual effort.

Section 4 - concepts:

The rights under this law shall not extend to the concepts on which the computer software is based.

Section 7 - duration of rights:

  1. The rights under this law shall begin at the time when the computer software was created.
    1. Subject to paragraph (b), the rights under this law shall expire at the end of a period 20 years calculated from the earlier of the following dates:

      The date when the computer program is, for purposes other than study, trial or research, first used in any country in controlling the operation of a machine having information-processing capabilities, by or with the consent of the proprietor;

      The date when the computer software is first sold, leased or licensed in any country or offered for those purposes.

    2. The rights under this law shall in no case extend beyond 25 years from the time when the computer software was created.

Section 8 relief:

  1. Where any of the proprietor's rights have been, or are likely to be, infringed, he shall be entitled to an injunction, unless the grant of an injunction would be unreasonable having regard to the circumstances of the case.
  2. Where any of the proprietor's rights have been infringed, he shall be entitled to damages or such compensation as may be appropriate having regard to the circumstances of the case.

APPENDIX III

EC Directive 91/250/EEC, The Council Directive of 14 may 1991 on the Legal Protection of Computer Programs. OJ L122 17 May 1991, at 42

Provisions from this directive must be implemented by the Member States before January 1st 1993, the date of establishment of the Single Market. It is the purpose of the directive to secure effective and reliable

legal protection for computer programs in all Member States, to remove existing differences in national legislation which adversely affect the functioning of the Common Market and to prevent new differences from arising which would have the same effect.

The directive does not define a computer program. It only states that the term shall include preparatory design material (Art. 1(1)), and that protection shall apply to the expression of a computer program in any form (Art. 2(2)). Computer programs are to be granted protection in all Member States under copyright law, as literary works within the meaning of the Berne Convention.

It then follows that what is protected is the expression of a program, but not the ideas or principles underlying any element of a computer program, including those which underlie its interfaces (Art. 1(2)).

Article 8 covers the duration of the copyright and brings the protection into line with the Berne Convention. Consequently as a literary work a program is copyrighted for Fifty years beyond the death of the author (Art 2E 8(1)), but Member states with current protection for longer periods are now allowed to maintain this longer term (Art. 8(2)).

Bibliography

Books Referenced

C. Scarles International Copyright Legislation 1980
D. Bainbridge Computers and the Law
M. Flint Intellectual Property: The New Law: A Guide to Copyright 1989
R. Robertson Legal Protection of Computer Software 1990
HMSO Presented to Parliament by the Prime Minister (CMND 9117) 1983
D. Remer Legal care for your software : A step by step guide for computer software writers 1984
W. R. Cornish Intellectual Property 2nd. Ed. 1989
S. Ricketson The Berne Convention for the protection of literary and artistic works (1886-1986) 1987
H. Laddie et al The modern law of copyright 1980
Ian J. Lloyd Information Technology Law 1993
C. Reed Computer Law 2nd Ed 1993

International Yearbook of Law Computers & Technology Volume 9 1995
UNESCO The ABC of copyright 1981

Halsbury's Laws of England

All specific Hungarian legislation reproduced with the kind permission of
Dr. Balogh Zsolt Gyorgy of the Janus Pannonius University, Faculty of Law, Pecs, Hungary.1995

Journals

Computing
Computer Weekly
Communications
Masons Law Reports
European Intellectual Property Review

Footnotes

[1] British Software Alliance estimated figures for 1994

[2] Computer Weekly July 27 1995 p.31

[3] Diamond v Diehr [1981] 450 U.S. 175

[4] Re Alappat [7/29/94]

[5] Supra no. 3

[6] Supra no. 3

[7] Merrill Lynch's Application [1988] R.P.C 1

[8] Genetech Inc's Patent [1989] RPC 147

[9] Vicom Systems Application [1987] O.J. EPO 14

[10] Nissans Application 9027460.6 [1994] Masons CLR 12-22 p.20

[11] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601

[12] Computer Associates Inc v Altai [1992]

[13] Whelan v Jaslow [1986] 797 F 2d 1222

[14] Supra no.12 p 705

[15] Lotus Development v Borland [March 9 1995]

[16] Richardson (John) Computers Ltd v Flanders & Chemtec Ltd [1993]

[17] Ian J. Lloyd 'Information Technology Law' Para. 30:23

[18] Ibcos Computer Ltd & Another v Barclays Mercantile Highland Finance Ltd & others [1994] Masons CLR 1-11

[19] IBM v Computer Imports Ltd [1989] 3 EIPR d-61 Comment by Brendan Brown (New Zealand Case
[20] Supra no. 11

[21] Hollingrake v Truswell [1894] 3 Ch 420

[22] Cutting Edge

[23] Apple Computers Inc. v Mackintosh Computers Ltd [1986] 28 D.L.R. (4th) 178

[24] UNESCO - United Nations Educational, Scientific and Cultural Organisation

[25] GATT - General Agriculture and Trade Tariffs

[26] Supra no. 13

[27] Broderbund Software Inc. v Unison World-wide Inc. 684 F.Supp. 1127

[28] Supra no. 18

[29] Supra no. 19

[30] Computer Weekly April 27 1995 p.3

[31] Copying Ideas in Computer Programs by C. Arnold International Yearbook of Law Computers & Technology vol:9 1995 p.183

[32] Computer Weekly May 11 1995 p.6,11,10; March 23 1995 p. 3

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