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  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
firstname.lastname@example.org 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