Computer Programs and Copyright: More Exceptions to Infringement

AuthorDavid I. Bainbridge
Publication Date01 Jul 1993
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01891.x
Computer Programs and Copyright:
More Exceptions to Infringement
David
I.
Bainbridge”
The breadth of copyright protection for computer programs is potentially very
generous, extending to program structure, screen displays and preparatory
materials
,1
but this has been significantly compromised by the Copyright (Com-
puter Programs) Regulations
1992
which came into force on
1
January
1993.
The
Regulations were made in order to ensure that the United Kingdom complied with
the European Community Directive on the legal protection of computer programs,*
and they make some far reaching amendments to the Copyright, Designs and Patents
Act
1988
as it applies to computer programs. The nature of copyright protection
creates a danger that rights in computer programs could be open to abuse and detract
from the establishment of standards which is itself seen as an important goal. Unlike
other original works of copyright, there is a need for computer programs to be able
to interact and interoperate with each other and, failing the safeguards against abuse
of right that are well established in patent law, it was seen as desirable that special
provision be made to permit certain acts to be done to facilitate the interoperability
of computer programs.3 Otherwise, the owner of,the copyright subsisting in a
computer program that had become established as the market leader could control
the market either by asking extortionate royalties hom other software producers
who wished to make interoperable programs
or
refusing to grant licences in respect
of the interface aspects of his program.
The two primary purposes of the Directive were to provide an effective means
of protecting computer programs and to harmonise the copyright protection of
computer programs throughout the Member States. However, so far as the United
Kingdom is concerned, since we already had strong copyright protection in place,
the Directive and the Regulations have the effect of considerably weakening the
ability of the copyright owner to protect his computer program,
or
certain aspects
of it, by means of copyright law and contract law. A further concern for the computer
industry is whether the Regulations fully reflect the Directive’s provisions. Certainty
is perceived by the industry as very important, as the period leading up to the
Copyright (Computer Software) Amendment Act
1985
amply
demonstrate^.^
There is some doubt as to how effectively the Regulations implement the Directive
and this can do nothing but detract from the goal of encouraging investment in the
development of new and innovative computer programs. Add to this the difficulty
in reconciling European Community Directives with inconsistent domestic legisla-
ti~n,~ and it can be seen that the resultant uncertainties do not help the computer
*Aston Business School, Aston University, Birmingham.
1
2
3
Bainbridge, ‘The Scope of Copyright Protection for Computer Programs’
(1991) 54 MLR 643.
Council Directive on the legal protection of computer programs (91/250/EEC)
[1991]
OJ
L122/42,
hereinafter referred
to
as
‘the
Directive.’
‘Interoperability’ is described in the Directive as ‘the ability
to
exchange information and mutually
to
use information which has been exchanged.’ An example is a data file produced by one computer
program that can be used in conjunction with another computer program.
4
A large number of publications alluded
to
this aspect: see eg Elsom, ‘Protecting Software Against
Piracy’
(1983) 25(3)
Data
Processing
6,
at
7
and Haines,
‘No
Copyright in Computer Software?’
(1984) 128
Sol
J
126, 126.
de Burca, ‘Giving Effect
to
European Community Directives’
(1992)
55
MLR 215.
5
59
1
@
The
Modern
Law
Review
Limited
1993

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