Computer Program Copyright - Coursework Example

Computer Program Copyright Ownership Copyright is owned by the individuals who have actually ed the work. In the field of software development, software developers operate as contractors who operate in an independent manner. In such cases there is lack of dispute regarding the proprietorship of the software’s copyright. Any dispute regarding the ownership can be avoided if contracts are well worded. According to Bainbridge, the individual who has created the work is the owner of the copyright (Bainbridge, 2008). Problems arise when an individual develops a product for his/her employer. In such scenarios the ownership belongs to the employer. There are certain exceptions to the rule of ownership of copyright when global organizations such as United Nations is involved and even in situations similar to the Crown copyright case. Under the Copyright, Design and Patent Act of 1988, it has been clearly stated that author is the owner of copyright (Rowland et al., 2005). A section 9 clearly states that the person who develops software through the use of a computer owns the copyright (Rowland et al., 2005). In several scenarios it has been witnessed that ownership of copyright belongs to the employer even when the employer and the author are separate. Within the present case study, the employer is the owner of the copyright of the codes of the software and has the right to share, sell, provide license, change and even reuse the codes. Therefore, the company that has just started its operation has to gain a licence from the company that originally owns the software codes in order to utilize as well as change and access the codes as well as the software. According to Rowland et al. courts in UK are not ready to replace the term developer with the term acquirer in cases in which a programmer is indulged in the act of reusing codes that it used in the development of another program (Rowland et al., 2005). This is because; doing so would reflect that the developers have no intention to develop such programs in order to avoid infringement of copyright. Furthermore, if the developer has intentions to develop such programs it would be very difficult to draft a contract for the relationship between the employer and the developer. Furthermore, any term that is used in a contract is scrutinized by the courts in order to identify whether the term is applicable and could be understood in compliance with the background of the contract. It is quite hard to predict when the courts will be ready to replace the term developer with acquirer and it is quite difficult to identify how developers will be impacted by the inclusion of the term and how acquirers will be able to access the software code without have the copyright. Originality The act has clearly stated that copyright protection is only applicable to works that are original in nature. The term originality is used to refer to work that was not stolen from another source. In the case Of University Of London Press Ltd V University Tutorial Press Ltd it was witnessed that originality of work refers to the development of work based on a creative or a new thought (Rowland et al., 2005). This means that idea is not the element used to define originality and rather it is the actual work that defines originality. The Act even does not state that it should be presented in a novice form but it should not be copied from the work that was done by someone else (Loyd, 2008). Article 1(13) has provided insight regarding the qualification of a computer based software as a form of original work. The Article states that software developed for computers can only be regarded as original if the software has been developed by developer’s own thought. This is the only criteria for identifying whether a work is original or not (Bainbridge, 2008). The criterion is quite different globally. For example, in Germany software is recognized as original and fit for copyright protection if it is the outcome of imaginative attainment that surpasses those skills that are utilized by an average program developer. This criterion was developed in the case of Sudwestdeutsche InKasse KG v Bappert und Burker Computer GmbH during the period of 1985 (Murray, 2013). This means that any software that does not require special techniques used in programming cannot qualify for a copyright. The treatment of software codes in case of copyright is similar to the treatment of software. The originality that is involved in the implementation of these codes is copyrightable. Any software that is developed through the intellect or creative though of another individual is not considered as original. The company that is being discussed is the owner of the copyright of the codes of the software because these codes were not expressed by other public individuals. The idea of the software was only shared by the team of software developers that were hired by the company. Due to this employee who had left the company knew about the codes and the software. The laws of the EU and US provide complete protection to the software and the codes of the software that already existed. Confidentiality The laws of United Kingdom have a confidentiality clause in the case of software copyright and these laws protect the paper work, source codes and products of the software. These laws even protect how intelligence is shared, the controlling and the disclosure rights of the software and information that is made public. Under the confidentiality law, the region of United Kingdom has disallowed the receiver of information to use as well as share the information that has been provided to him and if he is expected to keep the information confidential in an implied and explicit manner. If the receiver shares the information then he/she is required to pay for the damages or reimburse the profits that he/she has made from the act of disclosure. Software developing companies indulge in the act of keeping their software codes confidential and only provide their clients with the complete software. It is even implied that the codes of the software are to remain confidential as long as they have not been made public. While keeping the confidentiality issue in mind, a contract between the employer and employee has to be in explicit as well as implicit form. The courts are faced with an issue because employees who have been separated from a company may need to use their learnt skills in other companies to gain employment and benefits. The issue becomes complex since there is an overlap of laws of copyright and employment. Therefore certain rules have been created to protect the interest of both the employers and employees. In the case of Northern office Microcomputer (Pty) Ltd v Rosenstein (1982) the court had to develop a line while protecting the interests of employers and employees (Kariyawasam, 2011). In this case an employer had developed similar programs for two different companies. In this case the court held that software is similar to literary work and their confidentiality is important but to a limited extent. Copying Copyright laws of software even govern the practice of developing printed list of software. The law has separate but technical meanings for the acts of copying and adaption even in the context of information technology. Courts face a special issue when a person copies the structure of another work and develop his own version of the work. Laws allow an individual to learn from other software and develop their own software that has similar functionality but the language used for programming should be dissimilar. Section 17(2) states that the term copying is used in the context of literary works and in this context it means reproduction as well as storage of any work in any form (Murray, 2013). Section 17(6) defines copying in the context of any work that has been copyrighted. The section states that copying refers to the act of developing similar copies of a work and using it for other purposes (Murray, 2013). This means that use of software by an unauthorized person results in the infringement of copyright of that software and this is why license is essential to gain authorization. An employee is even held responsible for infringing copyright of software when he uses his employer’s software as a base for the development of his own software. Employees might perform such an act for other employers and they may be working against copyright laws. In the case of IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd (1994), an employee developed software for recording accounting and payroll transactions (Murray, 2013). The employer for whom he developed this software signed a contract with the employee that stated that the employee had given the copyrights of the software to the employer and cannot develop similar software for at least two years. The same employee then developed similar software that performed similar functions for another employer. But the software was never marketed as per the two year restriction but still the first employer had sued for infringement of copyright as well as breaking of confidentiality. Infringement The copyright attained by an owner or author gives certain rights to perform certain activities to the owner. Section 16 of the Copyright, Design And Patent Act outlines these activities (Murray, 2013). These activities include that only the owner of the copyright can copy, provide copies, obtain rent or advance, use, display and complete and create adaptions of the work. If these works are carried out by another individual or another individual authorizes someone else to perform these acts then that individual caused infringement of copyrights and can be sued by the original owner. While identifying whether copyright was infringed, the two versions of the works are compared and in order to identify whether any form of infringement has taken place it needs to be established that the original work was utilized. Certain actions have been permitted in the context of copyright through the Copyright Regulation of 1992 (Murray, 2013). These actions include the decompilation of software in order to develop software that will support the original software. Creation and lawful use of software copies as well as using the software to test its functionality for which it was developed is even permitted. Develop copies and adaptions of software for purposes that are considered lawful. References Bainbridge, D. I., & Bainbridge, D. I. (2008). Legal protection of computer software. Heath, West Sussex, Tottel Pub. Kariyawasam, R. (2011). Chinese intellectual property and technology laws. Cheltenham, UK, Edward Elgar. Lloyd, I. J. (2008). Information technology law. Oxford [England], Oxford University Press. Murray, A. (2013). Information technology law: the law and society. Rowland, D., & Macdonald, E. (2005). Information technology law. London, Cavendish Pub. Read More