The Scope of Copyright Protection for Computer Programs

DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02660.x
AuthorDavid I. Bainbridge
Date01 September 1991
Published date01 September 1991
The Scope
of
Copyright Protection for
Computer Programs
David
I.
Bainbridge”
The computer industry has been extremely active in its pursuit
of
strong legal
protection for computer programs and has secured changes to copyright
law
on an
impressive international scale. Copyright law has been the vehicle by which the
legal protection of computer programs against unauthorised copying has been afforded
and, generally, computer programs are protected as literary works. Although
computers have been around since the 1940s, the need for protection against copying
computer programs did not arise until the wide-scale spread of computers associated
with
the development of mini-computers and, especially, micro-computers.
I
Inter-
nationally, changes to copyright law to accommodate computer programs have been
spread over a number of years and there remain many countries that have yet to
take action. The United States of America was first with amending legislation
in
1980 followed by Australia in 1984 and Japan, the Federal Republic of Germany,
France and the United Kingdom in 1985, Other countries followed whilst others,
such as the Netherlands, perceived their existing law to be satisfactory on this count
and others commissioned preliminary studies
,z
Arguments for strong protection of computer programs appear at first sight to
be reasonable, especially considering the desirability of attracting investment and
stimulating innovation in new technology. However, the computer industry is now
split over issues relating to the scope of protection, for example, whether basic ideas
and algorithms should be protected and the advisability of permitting reverse analysis
of computer programs to assist in the development of inter-operable systems which
will
interface
with
or replace existing computer programs. The European Commission
is presently grappling with these issues in its attempt to product a directive aimed
at harmonising the legal protection of computer programs within the European
Communities.3
In
the United Kingdom, computer programs are protected by copyright as literary
works by subsection
3(
l)(b) of the Copyright, Designs and Patents Act 1988.4
By
section
1
of the Act, copyright subsists in
a
computer program
if
it is original and
*Lecturer
in
Law, Aston University.
I
There were many earlier examples of calculating machines designed to perform specific tasks but
the ‘true’ computer, a universal machine that could be programmed to perform different functions
was not developed until the late
1940s.
An early example was the Mk
I
computer built at Manchester
University
in
1948.
For a comprehensive history of the development of computers, commencing with
the invention of the abacus around
ZOO0
BC, see Augarten,
Bit
by
Bii:
Illustrated
History
of
Computers
(London: Allen
&
Unwin,
1985).
For
a comparative study
of
international legislation and case law, see Dreier, ‘Copyright Protection
for Computer Programs in Foreign Countries: Legal Issues and Trends in Judicial Decisions and
Legislation’
(1989)
20
IIC
803.
Also
see
Soltysinslii, ‘Protection of Computer Programs: Comparative
and International Aspects’
(1990)
21
IIC
1.
The latter article includes a discussion of experiences
in
socialist countries.
Pressure groups have been formed representing diametrically opposite views within the industry. ECIS
(European Committee for Interoperable Systems) argue for reverse analysis being permitted under
copyright law whilst SAGE (Software Action Group for Europe) argue against this. Whilst reference
will be made to international and European developments where appropriate, this article concentrates
primarily on the position in the United Kingdom.
Unless otherwise stated, section numbers and references
to
‘the Act’ imply the Copyright, Designs
and Patents Act
1988.
2
3
4
The
Moderti
Lnw
Review
54:5
September
1991 0026-7961
643
The Modern
Law
Review
[Vol.
54
if the qualification requirements are fulfilled. The latter may be satisfied either by
reference to the author or to the country in which the program was first published.s
The scope
of
protection is, at first sight, measured by the acts restricted by copyright
such as making a copy or an adaptation of the computer program in question as
defined
in
sections
16-21
of
the Act.a Any person who does or authorises another
to do any of these restricted acts without the licence
of
the copyright owner infringes
the copyright in the program and may be sued by the copyright owner or an exclusive
licensee of the owner. Sections
22
to
28
of the Act provide for other infringements
of copyright, known as secondary infringements, which are
of
a commercial nature
and include activities such as dealing with or importing infringing copies
of
computer
programs, most
of
which attract criminal penalties. As these secondary infringements
flow from ‘primary’ infringements, they will not
be
considered further as
the
purpose
of this article is to describe and discuss the scope of copyright protection. In particular,
the limits of the acts
of
copying and making an adaptation, the two most important
restricted acts in terms of computer programs, will be dealt with. It will be argued
that, following the uncertainty as to whether computer programs were protected
by copyright which was finally put to rest by the Copyright (Computer Software)
Amendment Act
1985,
the pendulum has swung too far in the other direction and
the extent
of
the protection now offered by copyright may be
too
extensive. This
could unduly inhibit innovation and competition within the computer software
industry.
The examination of the scope
of
copyright protection for computer programs
requires a consideration of the interpretation of the restricted acts of copying and
making an adaptation in relation to the actual program code, and the protection of
incidental characteristics
of
computer programs such as screen displays. The ‘look
and feel’ developments in the United States following
Whelan Associates
Inc
v
Jasfow Dental Laboratory
Znc7
will be described, as will the prospect for similar
developments
in
the United Kingdom in the future.
The Copyright, Designs and Patents Act
19888
For copyright
to
subsist
in
a computer program it must be ~riginal.~ This has been
generously interpreted by the courts as meaning that the work in question has not
been copied from another work and is the result of the author’s own independent
efforts.’O Therefore, a computer program need not be novel or unique in any
5
ss
153-162. The provisions relating to qualification will not normally
be
a problem and will be satisfied
in
most cases. International copyright conventions also play a part. The United Kingdom is a signatory
to both the Berne Convention and the Universal Copyright Convention.
As
a
result,
if
a computer
program is first published (made available to the public) in a Convention country (or published
in
a Convention country within
30
days of its first publication elsewhere) it will be afforded copyright
protection
in
the United Kingdom. Most countries are signatories to either one or both of the
Conventions. Authors qualify for protection if they are British (in a wide sense; see
s
154) or are
domiciled or resident
in
the United Kingdom or a Convention country at the time the computer program
was written.
Other restricted acts are: issuing copies of the work
to
the public; performing, showing or playing
the work
in
public; broadcasting the work or including it in a cable programme service.
For an account of the effects of this Act on the protection of computer programs, see Tapper,
Computer
Law
(London: Longman, 41h ed. 1989) and Reed (ed),
Coinpurer
Law
(London: Blackstone, 1990).
See,
for example, the judgment
of
Peterson
J
in
University
of
London
Press
Ltd
v
University Tutorial
Press
Ltd
[I9161
2
Ch 601.
6
7 [I9873 FSR
I.
8
9
subs I(l)(a).
10
644

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