Copyright in a Computer Program - Coursework Example

IP Law & IT Module C1320 work Assessment Establishing that there has been infringement of copyright in a computer program is often very difficult. Discuss. Software Copyright in UK Software such as computer programs and games are protected on similar basis as the literary works. The main interest is the computer programs. Literary works include things such as newspaper articles, novels, instruction manuals, lyrics for songs and others. All literary works are original written works. Copyright does not apply to a name, slogan, phrase or a title; they are eligible for registration as a common-law or a trademark (Intellectual Property Office [IPO] 2009, p1). One is required to obtain permission from the copyright owner if he or she wishes to copy the written work in ways such as reproducing a printed page through handwriting, photocopying, typing work or even scanning the work into a computer; lend or rent the written work to the public unless in cases where exceptions apply (IPO 2009, p1). According to the Copyright Designs and Patent Act 1988, a copyright exists only if the computer program is an original literary work. The statute however does not define the word original. The approach towards the originality of the work in UK law is that the work is original if the creation is of the owner’s intellectual ability. The work produced must not be insignificant; it must show some level of labour, skill, knowledge or judgment in its creation. The creator of the work is the first owner of the copyright (Obhi n.d., 2). Exclusive rights to copy the work or make adaptations to the work or any part are given to the owner of the copyright; the work is the computer program (Coyle 2007, p1). In computer program protection, converting a program between or into computer codes and languages is referred to as adapting work. Copying involves storing any form of work in the computer. Running a computer program usually involves copying the work and in such cases one is required to get the consent of the copyright owner (IPO 2009, p1). Infringement of Copyright The most common forms of infringing computer programs are adapting, copying and distributing the work publicly. The activity of infringing may involve a part of the work or the whole work of the computer program (Obhi n.d., 3). In the UK this is the primary form of infringing. The secondary form of infringing is when someone breaches the owner’s work through a primary breach by another individual. This involves; (a) dealing in breaching copies; the individual circulates copies of the infringed work knowingly, (b) making the copying of copy protected work easier, (c) creating tools that enable removal of the copyright that protects the work and, (d) facilitation the infringement of copyrighted work through transmission (Mobbs 2002, p3). Why Establishing That There Has Been Infringement of Copyright in a Computer Program Is Often Very Difficult In the United Kingdom, the originality of computer program does not require the novelty or merit; the only requirement is that the work is supposed to originate from the author and that it is not supposed to have been copied or retrieved from another source. It is not of major concern in the UK law that the various elements that comprise the whole work have all been copied from another source as long as the particular combination has not been copied. The work is considered the owner’s creation if the owner has applied his own labour, skills and judgment. An exhaustive consideration of the degree of intellectual, creativity or the aesthetic content lacks in many of the software decisions (Lai 2000, p16). For example, in the UK there is difficulty in distinguishing between ideas and expression in the determination of copyright existence. There has been a campaign to do away with the British originality criterion and substitute it with the author’s original creation (Lai 2000, p17). When looking at the copyright infringement of computer software in UK in terms of literal copying, the UK court looks at three issues to determine whether the work was infringed. The three issues are: It tests the existence of the copyright in the claimant’s program. It goes on to see whether the defendant actually copied the work. It asks whether a part or the whole of the reproduction is substantial. A confirmatory response is given to each of the questions and determines if the work was infringed subject to the permitted work or defence. The first case to be held in UK to determine copyright infringement of a computer program was rejected on the grounds that it was irrelevant and incapable of helping the UK judge in determining the extent of copyright of the computer program. The case was between Ibcos and Barclays Mercantile Finance. The claimant owned a set of computer programs referred to as Agriculture Dealing System. The competing set referred to as UNICORN was created by a former partner of the company and was written in different varieties of the same programming language. The judge made a conclusion that there was disk to disk copying of the computer program. In regard to the copyright existence, the judge stated that the individual programs were protected by the copyright, but the set in question protected as a collection. Regarding to the issue of substantiality, the judge made a conclusion that 28 out of the 55 defendant’s programs infringed the claimant’s copyrights in terms of the program design features, program structure and sub-programs both as an individually and as a collection. A crude test for the existence of copying suggested that there was the notion of overborrowing of labour, skill and judgement which got into the copyright work. The overborrowing of labour, skill and judgement carried the descriptive value but failed as a prescriptive solution because it lacked precision. If the situation remains unchecked, it can result in the over-protection of the computer programs in the United Kingdom (Lai 2000, p25). It is evident from this case (Ibcos v Barclays Mercantile Finance) that unlawful use of computer programs can take many forms. Thus, determining where infringement of copyright has taken place may become very difficult. There are some sections that the judge agreed that there was infringement of the computer program copyright but in others he found none. The protection given to the computer programs or software under the law of copyright is wanting. There are two reasons as to why the protection is deficient; (a) the law fails to adequately protect the creative effort that has been put into the software from those who want to exploit it, and (b) it fails to prevent software piracy (Bently, Davis and Ginsburg 2010, p230). The British copyright law protects the expression of the computer program but not the ideas that have been into the work. The EU Computer Program Directive also suggests that the principles and ideas of a computer program should not be protected. The ideas and principles comprise the algorithms, logic and the programming languages. A key issue arises as to what extent the copyright law should protect the skills used in the writing of the codes in which the program structure has been expressed. The determining factor in this case is the decision of the judge but not the statute. In the case Navitaire v Easyjet Airline Co., there was no literal copying of the original program by the defendant because the defendant had no access to the original program and the big question in this case was whether anything else apart from the code could have been protected. The plaintiff had created an online booking system known as OpenRes for the defendant airline services. Consequently, the defendant created its own online booking system referred to as eRes and it was meant to give similar look and feel as the OpenRes (Bently, Davis and Ginsburg 2010, p234). The claimant alleged that there were three levels of non-contextual copying done by the defendant. The alleges were; (a) the program look and feel, (b) the structure of the user command, and (c) particular display screens. The claimant only succeeded on the last claim because the court treated it as artistic work that was protected by copyright. Under the de minimis principle, the user commands could not be protected by the copyright; this applied also to a collection of commands. The court claimed that the commands were equivalent to the computer language which was not protected by copyright. The judge disagreed with the notion that the look and feel could be protected by copyright (Bently, Davis and Ginsburg 2010, p234). He argued that a computer program has to be differentiated from other copyright works because two entirely different computer programs can result in an identical result at any level. And that was true for the author who had entirely no access to the other person’s work but the result was the same (Bently, Davis and Ginsburg 2010, p235). Conclusion The copyright law provides for provisions that can be used to determine the infringement of copyright but the establishment of infringement of copyright in such cases has been difficult. This has been well illustrated in the mentioned cases. References Bently, L., Davis, J. & Ginsburg, J. C. (2010) Copyright and piracy: An interdisciplinary critique. Cambridge, UK: Cambridge University Press. Coyle, M. (2007) Copyright and computer software [online], lawitreadingroom. Available from [Accessed 12 Feb. 2011]. Intellectual Property Office [IPO]. (2009) Written works including software and databases [online], Intellectual Property Office. Available from [Accessed 12 Feb. 2011]. Lai, S. (2000) The copyright protection of computer software in the United Kingdom. Oxford, UK: Hart Publishing. Mobbs, P. (2002) Protecting ideas in the new information economy [online]. Available from [Accessed 12 Feb. 2011]. Obhi, H. S. (n.d.) Computer programs: Infringement of copyright [online]. 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