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Software and copyright protection


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4 May 2011

Software and the law - Part One

Any starting point in relation to the legal protection of software must include copyright. There is no definition as such for what constitutes a computer program in the Copyright Designs and Patents Act 1988 (CDPA). A definition can be found in the Software Directive 2009/24/EC which was implemented in English law by by the Copyright (Computer Programs) Regulations 1992 (SI 1992/3233) (the Regulations) which amended the CDPA and defines (in recital 7 of the Directive) a computer program as "programs in any form, including those which are incorporated into hardware..... preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage" (recital 7, Directive).

I would not say this is particulary helpful and further guidance can be found from the ECJ's Judgement in Bezpecnostni softwarova asociace - Svaz softwarove ochrany v Ministerstvo kultury, Case C-393/09.

The ECJ held that both source and object code were forms of expression and were entitled to be protected by copyright as computer programs.

So in in the absence of patent protection ( more of this in Part 2) copyright protects both forms of code in all computer programs.

For the computer program to be protected it must be a literary work and must be "original" (section 1(1), CDPA), and recorded in writing or otherwise (section 3(2), CDPA).

The High Court last year in SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) considered whether all computer programs were protected and Arnold J agreed with the decision in the Navitaire case that copyright in computer programs did not protect programming languages, interfaces and functionality of computer programs. Reference was made to the ECJ on this point on interpretation of the Software Directive and CDPA.

Michael Coyle is a Solicitor Advocate and can be contacted via email at and through the office on 44 2380 235979. Lawdit Solicitors is a commercial law firm based in Southampton with associate offices in London, Rome and Malaga.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2011-06-02 12:11:27 in Legal Articles

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