Copyright Protection of Software (Short Comparative Review)

The WIPO Copyright Treaty (WCT), Article 4 establishes that computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention.

This allows for the necessary amount of flexibility in a fast-developing area, in which technological evolutions outdate definitions rapidly. In general terms, it can be said that a computer program is a series of coded instructions that are intended to bring about a particular result when used in a computer. Most computer programs are first written in high-level programming languages which bear a fair amount of similarity with normal languages, before they are compiled into machine code in order to allow the computer to run them. This machine code is in binary form—the well-known collection of ‘0’s and ‘1’s. At least we know that both versions of the program will be protected by copyright.

Arguably, copyright does not protect, as such, individual files or parts of a program, in the same way as it protects, for example, a novel as a literary work rather than each individual chapter of the novel.

It is submitted that the distinction is vital when dealing with infringement cases of software programs in order to determine whether substantial copying has taken place. The program must be taken as a whole when analysing whether infringement has taken place. This seems logical in relation to a novel, for which the test is whether there has been ‘substantial’ copying of the novel, rather than copying of a paragraph or sentence. This applies in a comparable way to computer programs. Separate programs can, of course, afterwards be combined in one program, which would, in copyright terms, be treated as a compilation.

Originality

The concept of originality implies that work was not copied and that a sufficient amount of skill, judgement, and labour had been invested in it. The concept applies to derivative works, provided that sufficient skills has been invested in such work. Only original literary works attract copyright protection. Countries have different approaches to the concept or originality. Russian law for example does not provide for the requirement of originality. The different approaches lend themselves to one common denominator. In the case of software, one requires that the software is the author’s own intellectual creation.

A major part of the originality of traditional literary works such as novels or plays is found in the plot. The issue is more complex when software is concerned, but it can be generally argued that the alternative for the plot is the algorithms or the operational sequences and that the required originality is to be found there, as well as potentially in the architecture of the program if a lot of work and expertise had gone into creating the latter.

Idea and expression

Copyright only protects expression and does not protect ideas.This doctrine statement must also be applied to computer programs: so, what is an idea? Clearly, the starting point and the reason for which a computer program is written come within this category. In the famous US Whelan case, a program was written to manage a dentistry laboratory. This was clearly part of the idea, as was the list of functions that the program should be able to perform and the targets it should meet; how all of this was to be achieved in practice, forms part of the expression of that idea and this not only includes the code lines of the program, but also its structure and sequence. The latter refers to the way in which the various parts and files are organized.

The precise borderline between idea and expression cannot be drawn in theory. As Judge Learned Hand said, already more than half a century ago: ‘Nobody has ever been able to fix that boundary, and nobody ever can.’ (Nichols v. Universal Pictures) It must be fixed in each individual case based on the facts of that case.

In a case that was concerned with computer games (Nova Productions Ltd v. Mazooma Games Ltd, Nova Productions Ltd v. Bell Fruit Games Ltd), the Court of Appeal in the United Kingdom held that the mere ‘idea’ as to what the program should do was not protected by copyright, because it had nothing to do with the nature of the work. The nature of the work was instead a computer program that had all the necessary coding to function. That expression would be a copyright work. The general idea was only faintly related to that.

What Is Really Protected?

In software, the expression is protected. We hold this to include the code lines and the structure of the program. But this expression is only protected in so far as it meets the originality requirement: it must for e.g. be the author’s own intellectual creation. This implies that there is more than one way to express the idea, otherwise the one possible way of doing so cannot be the author’s own intellectual creation or his or her particular way of expressing the idea. This leads us to the conclusion that those parts of the computer program that can only be expressed in one way if a certain result is to be achieved, due to technical restrictions, are not original and do not attract copyright. These parts of the program can be copied freely; to hold otherwise would bring the development of new software and the whole software industry to a standstill.

All forms of expression of a piece of software are protected. This lead, first, to the conclusion that the source code and the object code of a computer program are forms of expression which were entitled to copyright protection. However, neither the functionality of a computer program, nor the programming language and the format of data files used in a program to exploit certain of its functions, constitute a form of expression of that program for the purposes of copyright. To accept that the functionality of a program could be protected by copyright would after all amount to making it possible to monopolize ideas and only the individual expression of such work is capable of protection (SAS Institute Inc. v. World Programming Ltd). On the same basis a computer program’s graphical user interface is excluded from protection as a computer program, as it does not constitute a form of expression of a computer program. That does however not exclude it from (potential) copyright protection as a normal copyright work.