Information Technology Law - Dissertation Example

Information Technology Law The modern world is characterized by numerous innovations, most of which are concentrated in the information technology field. People are coming up with amazing programs and software day in, day out. However, legal protection for computer materials is a big problem in many parts of the world. Many forms of intellectual property are difficult to protect legally, and the same thing applies to computer programs and databases. Information technology law is the term used to identify the legal provisions for the protection of digital materials. Ideally, everyone should be allowed to own their property without any legal repercussions. Creating computer programmes and compiling databases is no mean task. Those people who create these programmes and websites need to have strong legal protection for their work (Torresman p. 45). Many programmers enjoy legal protection for their efforts. However, there are a few who still have problems getting the same protection for their program and compiled databases. This has resulted in numerous court cases in which different parties lay claim to copyright for programs and databases (Madahavan 269). Although many computer programmers do enjoy copyright protection, this has not always been the case. The advent of digital computers played a big role in ensuring that programmers got copyright protection (Mazeh 113). Copyright gives the creator of original piece of work exclusive rights to distribute, copy and adapt his or her work, or what is referred to as authorship. The Intellectual Property Office is the country’s legal authority when it comes to copyright issues. Copyright, Designs and Patents Act 1988 (CDPA) in the UK is responsible for the protection of all types of intellectual property (Lai 29). These works include computer programs which cannot be copied, distributed or adapted without the copyright holder’s permission. Apart from the CDPA, the UK also follows European and some other international intellectual property laws when dealing with copyright issues regarding computer programs (Sherman and Bently 219). According to the EU directive, a database is “a collection of independent components, such as pieces of information, data or works, arranged in a systematic or methodical way and which are accessible by electronic or other means” (Dworkin and Taylor 61). The EU directive gives two major bases for legal database protection. These bases are: copyright protection and Sui generis protection. Copyright protection is considered when dealing with creativity. Sui generis protection is applied under the condition of considerable investment. The UK uses both the international copyright laws and European sui generis regulations in protecting databases (Seville 314). Although intellectual property law offers more protection to programmers and database compilers today than it did a few years back, a lot has to be done in order to make sure that these rights are not violated. The scope of copyright for computer programs and database protection is very narrow. While it protects the program and database against copy, distribution and adaptation without prior permission, the law fails to adequately offer protection to the functioanal aspect to the same (Dutfield and Suthersanen 67). It is a good thing that intellectual property law has come as far as it has, however there is room for improvement. This is mostly due to the fact that as technology becomes more complicated, so does the information technology industry. Programmers and database compilers are coming up with more complex products; whose functionalities are not protectable under the current law (Davison 89). This is why it is important to ensure that the law is firm enough where computer programs and database protection is concerned. Stronger legislation is needed to fill the gap left by the existing copyright and intellectual property laws (Lai 200). History of Computer Programs and Databases Copyright Laws The CDPA is the current legal provision for the protection of computer programs in the UK. This Act, which came into effect on November 1988, reformulates the constitutional basis of copyright laws which had been governed by another copyright act that had been passed in 1956. However, this was not the first copyright legislation to be passed in the UK. In 1709, the Statute of Anne was passed. It stated that “the author of a new book had the sole printing right on that book for 14 years” (Vaver 183). The author could be granted another 14-year extension if he was still alive when the first 14 years expired. However, if the author died before the end of the 14 years, the book could be freely published when the copyright term expired (Herman). In the Donaldson v Beckett 1794 case, the House of Lords did away with copyright for unpublished works. The Copyright Act was changed in 1814 to give the author copyright 28 years from the year of publication. If the copyright term expired while the author was still alive, it could be extended to the day he died (Clark 16). In 1842, the Act was once again amended, changing the copyright to last throughout the author’s life and seven years after he died, or 42 years from the date of publication (Davison 88). In 1886, an international copyright law was enacted; this was the Berne Convention which covered Copyright Protection in all member states, including Great Britain. In 1911, the Copyright Act was passed. It abolished common law copyright, a action that meant that copyright could only be granted by statute. The act also stated that “copyright arose in the act of creation, and not publishing” (Macmillan 172). The term of copyright was similarly increased to 50 years from the date of the author’s death. The Act was once again amended in 1956 to give room to new copyrightable materials such as cinematograph, broadcasts and typographical arrangements. The Copyright, Designs and Patents Act was passed in 1988 and it introduced among other things broader protection rights for computer programs (Intellectual Property Office 2007). Other countries also have a long history of copyright legislation that is connected with computer programs and database compilations. The United States is one of the countries which has had to deal with numerous with numerous court cases that have to do with copyright protection, or the lack of it (Herman). The Feist Decision In most cases, the courts in the US interpreted the Copyright Act to mean that it was illegitimate to copy facts in a database compilation that did not have any selection or arrangement original elements. The courts normally thought it unfair that the effort of people who assembled the databases was not fully protected by the law. The protection of database compilations in regard to the effort put in their compilations came to be known as Sweat of Brow (Lambert 361). In 1991, the Supreme Court ruled that the Sweat of Brow ideal was unconstitutional. This ruling was reached at during the Feist v Rural Telephone court case. In this case, Feist a publishing company that specialized in area-wide telephone directories had around 50, Office of Public Sector Information white page listings in over fifteen counties. Rural telephone on the other hand had a little less than 8 listings. The two companies were competing for yellow page adverts and Feist copied all of Rural Telephone’s listings to compile its own database (Commission on Intellectual Property Rights). The district court ruled in favour of Rural citing the UK Sweat of the brow doctrine. However, this ruling was rejected by the Supreme Court which argued that originality rather than effort was a requirement for copyright protection. The Supreme Court cited the 1976 Copyright Act Section 102 (b) which stresses the importance of originality in copyright issues. According to the Section 102 (b), states that “any idea, procedure, process, system, method of operation, concept, principle, or discovery” is copyrightable, regardless of its manner of presentation (Andersen 267). Section 103 of the same Act states that facts are not, under any circumstance, copyrightable. However, their selection and arrangement may be copyrightable. Therefore, according to this piece of legislation, it is possible for anyone to use the ideas and information conveyed in someone else’s work to come up with an original piece of work. This principle is known as fact-expression or idea-expression dichotomy, and it applies to all works of authorship including computer programs and database compilations (Andersen 86). In the Feist v rural case, the Supreme Court stated that the manner in which Rural selected and arranged its facts was obvious as it was the same method used in other white page listings. Since there was no originality in Rural’s database, the company lost the case (MacQueen, Waelde and Laurie). Since Feist helps in determining what is not copyrightable or protectable under law, there arose a dilemma as to what then constituted copyrightable compilations (Lambert 364). The CCC Information Services v. Maclean Hunter Market Reports gave a good idea on what constituted a computer database with copyrightable or protectable elements. CCC had been loading parts of Maclean’s Redbook to its computer system since 1988. They have then been republishing this content and distributing it in different forms to its customers. Over time, Red Book customers moved CCC. According to the Second circuit the Maclean’s work was original and held copyright protection (Commission on Intellectual Property Rights). This same dilemma faced the UK, but the legislation of Sui generis protection solved most of the problems that arose with this confusion. Copyright Protection for Computer Programs and Databases in the UK Databases in the UK are protected under the Sui generis law. The Sui generis law, which has been in effect since 1997, states that the creator of a database is also its first owner. The 1997 Regulations define a database maker as the person “who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obainign, verification or presentation” (Macmillan 176). Section 2 of part 14 of the regulation states that if a database is made by an employee during his employment, then the employer is the maker, but this is subject to any contradictory agreement (Colston 57). The Database protection law gives the owner the right to stop or prevent copying or any other unauthorized use of the said database. However, some exceptions may be applied where copyright seems to be infringed in both computer programs and databases. These exceptions are known as Fair Deal (Carr and Williams 146). If the program or database is used for research and private study, instruction or examination, criticism or review, accessibility for a visually impaired individual or news broadcast, then that is not considered infringement on copyright. According to CDPA, the duration of copyright for computer programs is “70 years from the end of the calendar year in which the last remaining author of the work dies” as noted by Burrell and Coleman (107). The 1997 Regulation 17 (1) states that database right should expire 15 years from the year of the complete creation of the database (Copyright Witness). The EU Directive for Copyright Protection The EU Directive for Copyright Protection law protects programmers from two categories of copying. These are: literal and non-literal copying. Literal copying involves the reproduction of the program’s code while non literal copying involves a reproduction of the feel and look of the program, that is, the interface, structure and functions of the program (Prime 267). Arguments in Support of Full Copyright Protection of Computer Programs and Databases There has been a raging debate on how copyright protection should be applied in regards to computer programs and databases. This is a thorny issue that touches on the right of the program’s creator to control the use of his original work. There are some people who support the idea of full legal copyright protection for computer programmers and database compilers and there are those who are against it (Clark and Gowdy 87 and Derclaye 207). Copyright protection for computer programs and databases helps in protecting the ownership rights of the programmer. Everybody wants to be credited with something that they created or helped create. With copyright protection, no one can take away these rights from those programmers who work night and day to create software and other programs which make a big impact in today’s technology world (Andersen 108 and Rowland and MacDonald 345). The problem with copyright protection for programs and databases come in when there are complications about what should be copyrighted and what is not copyrightable in the programs and databases. With strong copyright laws, it will be easy to determine to what extent programs and databases are legally copyrightable (MacQueen, Waelde and Laurie). Some people argue that Sui Generis, or specialized protection of databases will protect them from the digital world onslaught. A lot of investment goes into the compilation and maintenance of databases and there is need to protect them from the digital world where they can be copied very easily (Andersen, 65). The proponents of database copyright laws also claim that they need to be strengthened since they are not enough when it comes to online databases that are accessed through the search engine. They say that the common copyright law does not offer any protection for such databases and anyone can copy them at will, which is not fair (Stamatoudi 234). The arguments given for increasing the strength of computer programs and database protection can be summarized as follows: 1. Stronger copyright laws will encourage and increase private investment in computer program and database development which will have numerous benefits for industry and science. 2. Stronger copyright protection legislation will also put a stop the extensive use of privately owned licenses to protect programs and databases which should be in the public domain. 3. Sui Generis protection of non-creative databases will ensure that there is a balance between public access to data and private control of the same. Arguments against Strong Copyright Laws for computer Programs and Databases Those opposed to stronger copyright legislation for databases argue that there is adequate protection is provided under the existing Copyright laws. They argue that although the intellectual property law framework is thin, it is enough to protect the database against wholesale copying (Lambert 365 and Cornish and Llewelyn). The opponents also argue that the trade secret, contract and unfair competition laws do provide additional protection for databases irrespective of whether they are copyrightable or not (Office of Public Sector Information). This is to say that database compilers do not need to rely on the copyright law framework to protect their work. They can always use other legal frameworks as well as technical measures to protect their investment (Office of Public Sector Information). Concerns Raised by Specific Groups 1. Scientists and Researchers Sui Generis protection of databases has raised a lot of concern in the Scientific and research world, which make sue of freely available database information. There are some forms of research such as global warming which require a lot of data, most of which can only be available in databases (Colston and Middleton). Stronger Sui generis protection would greatly increase the cost of research for institutions. There is also concern raised that this kind of protection will affect the scientific culture of information sharing among different institution. This means that different scientific groups will start treating their databases as commercial entities (Stamatoudi 236). 2. Software Developers Software developers are some of those who are most affected by copyright laws that touch on computer programs. According to MacQueen, Waelde and Laurie, if stronger sui generis copyright protection was to be passed, it would affect those computer programs that are part of databases. The opponents of this kind of protection claim that it will hinder interoperability (Izaz 19). 3. Value Added Database Publishers More and more people are turning to the internet to look for new information. The presence of legitimate online service providers who take data from different databases and add valuable information to them make getting this information much easier. With the inception of stronger sui generis protection, this kind of business will cease to exist, and yet it does not pose any copyright infringement danger (Groves 155). 4. Businesses that rely on Lists and other Data The existing information age has seen many businesses become increasingly reliant on external information to conduct their own businesses. This information can be financial data, customer lists and even gene sequences. Many businesses pay for this kind of information willingly (Herman). However there are fears that more Sui generis copyright protection will make it difficult for business to access the information they need to run business. The businesses that rely on lists and other Data argued that there was no need for further copyright legislation as the existing copyright laws were enough to deal with any issue arising regarding database protection (Groves 154). 5. Internet Companies One of the most important factors that influence globalization is the internet. There are several internet based companies which create programs and databases to carry out their businesses. Some internet functionalities depend on routing tables and directories all of which are part of computer databases. In the event that a stronger Sui generis protection is passed for these databases, what will result is an explicit liability on the part of online service providers. There are concerns that the market power will be concentrated solely on the internet (Herman). Conclusion Computer programmers and database compilers are hardworking people who deserve to reap from their effort. Strong copyright laws will without any doubt help these people in enjoying the returns that emanate from their creations. The collections that are made through the substantive investment of computer programmers and database compilers deserve and need to be protected from unfair copying (Clark 6). While there is no denying the importance of legal copyright protection for the work of computer programmers and database compilers, there is need to examine how this copyright may or may not infringe on other areas of technology (MacQueen, Waelde and Laurie). The Copyright Act of 1976 set out to offer minimum protection for computer programs and databases, but this did not stop numerous cases that arose due to copyright infringement issues. Sui generis was introduced to help simplify the copyright law and make it possible for courts to limit these rights where appropriate (Lambert 330). Program and database copyright may face a few challenges in future. An increase in globalization is making it harder for programmers and database compilers to keep track of their products. As more countries get access to localized programs and databases, it becomes harder to control their adaptation, copying and distribution. This raises complicated copyright issues such as the jurisdiction of copyright laws. Technology is also moving at an alarmingly fast rate and this is a major problem for copyright of advanced computer programs and database compilations (Derclaye 207). However, with proper legislation, copyright for computer programs and database compilations will be well protected. When determining the need for copyright protection for programs and databases, there is need to ask whether the creators of thereof really deserve that protection. Originality should be the major determining factor in allowing copyright protection for a program. There should also be some strong legal frameworks to ensure that copyright laws for computer programs are not violated in any way. Stronger database and computer program protection will enhance trade and sharing of information among individuals and groups (Cornish and Llewelyn). Everyone deserves to have some form of control in his or her creation, as long as he maintains absolute ownership of the same. Works Cited Andersen, Birgitte. Intellectual Property Rights: Innovation, Governance and the Institutional Environment. London: Edward Elgar Publishing, 2006. Print. Burrell, Robert and Allison Coleman. Copyright Exceptions: the digital Impact. London: Cambridge University Press, 2005. Print. Carr, Indira and Katherine S. 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