Computers and the Law: The Protection of Intellectual Property
| Author | James Lahore |
| Published date | 01 March 1978 |
| DOI | 10.1177/0067205X7800900102 |
| Date | 01 March 1978 |
| Subject Matter | Article |
COMPUTERS AND
THE
LAW:
THE
PROTECTION
OF
INTELLECTUAL PROPERTY
By
JAMES LAHORE*
With the development and widespread use
0/
computer tech-
nology difficult questions relating to the legal protection which
may be given to computer "software" must be considered. In this
article Mr Lahore examines the existing law relating to intellectual
property and discusses whether the Patents
Act
1952
(eth)
and the
Copyright
Act
1968
(eth),
as
they have been and may be inter-
preted and applied, provide suitable and adequate protection for
this computer software.
Introduction
The impact of computer technology on the law of intellectual pro-
perty has raised legal problems which have proved difficult if not
impossible to answer within the framework of existing legal concepts.
Intellectual property
is
relevant to the development of computer
technology in two broad areas: legal protection for the work of the
programmer and infringement of intellectual property rights by the use
of computers.
It
is
impossible to avoid giving only abroad survey of
these areas in apaper of this nature but an attempt will be made to
indicate present developments and proposals for reform.
It
is
particu-
larly appropriate to consider the protection of intellectual property
at
this time
as
important and interesting studies of the issues have recently
become available
or
will soon be taking place. Irefer to the Report of
the Committee to consider the Law on Copyright and Designs
(the
Whitford Committee Report) which was presented to Parliament in the
United Kingdom in March 1977,1 and to the
Fourth
Session of the
Advisory Group of Non-Governmental Experts on the Protection of
Computer Programmes which was held in Geneva in June 1977
at
the World Intellectual Property Organization.2As the Report of the
Whitford Committee and the deliberations of the' Advisory Group see
the solution to the problems of the protection of intellectual property
as
lying within the
field
of copyright law rather than within that part
of the law of intellectual property which
is
concerned with the grant
of patents for inventions, it
is
to the problems of copyright that this
paper will be largely directed. Another important development in the
*M.A., B.C.L. (Oxon), LL.B. (Melb.), LL.M. (Penn.); Reader in Law, Monash
University.
1Report
of
the Committee to consider the Law on Copyright and Designs:
Copyright and Designs Law Cmnd 6732. The Chairman
of
the Committee was The
Honourable
Mr
Justice Whitford.
2The session was held from June 1to
3.
The conference documents are
included in the series
AGCP/NGO/IV.
15
16 Federal
Law
Review
[VOLUME
9
direction of a"copyright solution"
is
the American Copyright Revision
Act
which came into operation on 1January 1978.3
It
is
necessary, by way of introduction, to clarify the meaning of
the concept of intellectual property and to indicate briefly how it
is
that
the concept has relevance for the computer software industry and the
programmer generally.
It
may be said
at
the outset that the law, in
attempting to deal with new computer technology, has been juggling
with concepts which had their origins in an earlier age and which were
developed for purposes which did not require solutions to the problems
now posed by computer technology.
In
general, the concepts do not
"fit" the form of the technology. The law of intellectual property!
is
defined by the Convention establishing the World Intellectual Property
Organization as including the rights relating to:
-literary, artistic and scientific works,
-performances of performing artists, phonograms, and
broadcasts,
-inventions in all fields of human endeavour,
-scientific discoveries,
-industrial designs,
-trademarks, service marks, and commercial names and
designations,
-protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.5
Protection of the above work
is
dealt with under l).ational laws by
the laws relating
(0
copyright, industrial designs, patents for inventions
and trade marks, and the laws preventing unfair competition and
disclosure in breach of confidence.
If
one were to seek ageneral
conceptual framework within which to include these various laws it
would probably be the protection of the results of intellectual activity
in the form of inventive ideas, new products and original work from
unauthorized use
or
misappropriation. This
is
done by giving to the
inventor, designer
or
originator of the material certain exclusive rights
of exploitation for limited periods. The object
is
seen as the advance-
ment of industrial and cultural development and the encouragement
of the necessary financial investment. As it
is
the laws relating to
patents for inventions and copyright which directly concern the pro-
tection of computer technology, and
as
it
is
the possible infringement
of copyright which
is
the principal issue in the use of computers in the
3Title 17, USC (Public
Law
94-553, October 19, 1976).
4This
term
has
not
been commonly used in Australia until recently.
The
previous practice was
to
use the term Industrial Property. This latter term
is
now
generally used
to
include rights in inventions, trademarks and designs,
but
not
copyright.
SConvention, Article 2(viii) (Stockholm, 14 July 1967).
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