How can software be protected?
There are various ways in which software that has been developed by a business or a person can be protected by intellectual property. It is theoretically possible to obtain a patent for the software if the relevant criteria are met, but the high level of the criteria may make this difficult to achieve.
An alternative and substantially easier to obtain protection lies with copyright. The level of protection granted under copyright law isn’t, however, as good a level of protection as patents but it does arise automatically rather than having to pay for it.
Where does copyright protection for software come from?
Copyright protection on software stems from two sources, the Copyright, Designs and Patents Act 1988 and directive 91/250/EC (commonly known as the software directive).
What sort of protection does copyright afford?
Copyright protection in software comes in many forms
- The code is a literary work
- The on-screen display could be an artistic work
- The soundtracks are musical works
- Moving images can be protected as a film and so on
These are all copyright works, and therefore two requirements are given for protection.
Firstly Article 1(2) of the Software Directive requires that the subject of protection must constitute a work as defined under normal copyright law (see Copyright, Designs and Patents Act 1988 Chapter 1) and any ideas or principles underlying the subject are not protected as these should be protected by patents if applicable.
Secondly Article 1(3) of the Software Directive makes the requirement that the subject must be original. This seems to be a standard requirement from copyright, in that it requires the independent, skill, labour and judgement. There is, however, a slight variation to normal copyright. Article 1(3) of the Software Directive requires that the programme is the authors own intellectual creation. This would seem to be a slightly higher requirement than merely independent effort but this has yet to be tested fully in case law. It would appear as though some form of intellectual spark were required for an intellectual creation rather than simple, mechanical persistence.
As the protection is granted under the copyright laws the closer to the original the copy is the stronger the infringement. This means that if the copy has a substantial amount of the work directly copied into it the case should be relatively easy to prosecute. The problem, when it comes to copyright in software, is non-literal copying.
What is non-literal copying?
A slight problem comes with non-literary copying. This is copying that doesn’t merely lift form one programme and put it into another, it might be the case that the programme has change language which would be an adaptation and an excluded act under Section 21 of the Copyright, Designs and Patents Act 1988. Basically it is a form of copying that does not include the wholesale lifting of one programme into another.
Problems with non-literal copying
One problem lies with assessing how much the substantial part of the software has been taken, bearing in mind the idea/expression dichotomy under Article 1(2) of the Software Directive which gives protection for the expression of a work not the idea behind it. In the UK the fact that copyright will not protect an idea but only the tangible expression of that idea is not statute. It has, however, been case law for a very long time and as such the courts will uphold the principle.
In term of software, this idea/expression dichotomy means that the code that is written is protected but what the programme does or how it achieves its goals is not. Thos things should be the preserve of patents.
How do the courts approach this?
Access plus similarity
The earliest cases in this area took place in the US, with Europe using these cases to inspire their own protection measures. The first of the US cases was Whelan v Jaslow in which a similar programme was written in a different programming language. There were step-by-step similarities in essential subroutines, leading to the suspicion that there was copying. This case a very simple test was used. It first had to be shown that the defendant had access to the software in question and then that there was an ‘objective similarity’ between the defendants programme and the original.
Access may be found if, for example, a programmer has switched companies or is a freelance contractor who has worked for both the copyright holder and the defendant. If this form of access has been found it may be possible to further sue the contractor or ex-employee for breach of confidence.
The test firstly reverse engineers the programme, identifying the key elements (an abstraction), secondly it removes the key elements that are common in the art (filtration) and finally compares what is left of the two programmes to see if there is a substantial taking (comparison). This was used in the UK in the case John Richardson v Flanders.
This test was introduced when it was thought that the AFC test was too complicated. This test is similar to the idea of looking for access plus similarity but the elements of the programme including the code, the structure and the design are also taken into account when comparing the two programmes. For example common spelling errors throughout the programming, common comment headings and similar redundant sub-routines would be looked for. This approach has been used in cases such as Ibcos v Barclay and Cantor Fitzgerald v Tradition UK.
What is the current situation?
Non-literal copying is still a contentious field. In the UK it appears as if the test of access plus similarity still holds a lot of weight. It also seems that the AFC test preferred in the US is, in the opinion of the UK courts, too complicated. A simple test of over-borrowing was enough in Ibcos v Barclays. It must be remembered, however, that any infringement will still be assessed under the traditional substantial parts test from conventional copyright, after the work to be protected had been found.