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sa Ethics and cyber low

 Outline
Copyright and computer programs
 Historical development of copyright for computer programs
 Subsistence of copyright in computer programs
 Preparatory design material for computer programs
 Restricted acts for computer programs
 Permitted acts for computer programs
 Programming languages and instruction sets
 Ownership, employees and freelance programmers
 Open source software and copyright
 Copyright databases in the UK before 1 January 1998
 The US and the ‘sweat of the brow’ principle
 Protection of databases in the UK and Europe
 Copyright databases
 The database right

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 Copyright and computer programs

❑ Historical development of copyright for computer programs

The United States amended its Copyright Act in 1980 to specifically include computer programs, defining a
computer program as ‘a set of statements or instructions to be used directly or indirectly in a computer in order
to bring about a certain result’.
In the United Kingdom, before 1985, it was not at all clear whether computer programs were protected by
copyright.
The then current Copyright Act of 1956 made no mention of computer programs.
One view was that a listing of a computer program, printed out on paper, was protected as a literary work.
An analogy could be drawn with codebooks which had been accepted as literary works towards the end of the
nineteenth century. Also, program listings, at least in source code, resembled written English to some extent.
Act 1985 was passed which made it clear that computer programs were protected as if they were literary works.
The Copyright, Designs and Patents
Act 1988 placed computer programs firmly within the literary work category for the purposes of copyright law
under section 3 together now also with preparatory design material for computer programs and databases.

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 Copyright and computer programs

❑ Subsistence of copyright in computer programs

Under section 3 of the Copyright, Designs and Patents Act 1988, for copyright to subsist in a
computer program it must be ‘original’ and it must be ‘recorded’ (all literary, dramatic and musical works are required to be ‘recorded in
writing or otherwise’). The qualification requirements
must also be satisfied. Each of these elements, originality, recorded in writing or otherwise and
qualification are discussed below :

1) Originality : Literary, dramatic, musical and artistic works have to be ‘original’ for copyright.

2) Recorded in writing or otherwise : In the United Kingdom, another requirement for computer programs (and other literary, dramatic and
musical works, though not artistic works) is that they must be recorded in writing or otherwise: section 3(2). This has a very wide
meaning and ‘writing’ is defined by section 178 as including: any form of notation or code, whether by hand or otherwise and regardless
of the method by which, or medium in or on which, it is recorded. Storage of a computer program in a computer memory or on computer
storage media such as magnetic or optical disks or ‘memory sticks’ should present no problems as the above definition

3) Qualification : Section 1(3) of the Act requires that, to be protected by UK copyright, a work must qualify for protection.
A work may qualify by reference to the author of the work or by virtue of the country of first publication.
These provisions are complex but, essentially, if the author was a British citizen (there are other forms of British ‘nationality’ status as well) or
was domiciled or resident in the UK or other countries to which the provisions apply, then the work will have UK copyright,

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 Copyright and computer programs

❑ Preparatory design material for computer programs

Copyright protection extends beyond the computer program itself and will cover written or
printed listings of programs, flow charts, specifications and notes.
includes preparatory design material for a computer program in the literary work category.
Prior to the Copyright (Computer Programs) Regulations 1992, these materials would generally be protected
as literary works although flow charts and diagrams would have been protected as artistic works.
The artistic work category of copyright includes paintings, drawings, diagrams, maps, charts and
plans which are all protected irrespective of artistic quality.
As a result of the Regulations which implemented the Directive on the legal protection of computer programs, however, preparatory
design material is deemed to be a literary work, irrespective of whether such material might previously have been protected as graphic
works and, hence, artistic works.
In practice, this should not be of any significance although there are some differences in the provisions for literary and
artistic works.
Preparatory design material must be original in the sense already discussed for copyright protection of computer programs. Because
copying includes copying by indirect means, it is possible that making an unauthorized copy of a computer program, or elements
associated with a computer program such as a screen display, infringes the copyright subsisting
in the preparatory design material in addition to any question of infringement of the copyright
in the computer program or screen display, per se.

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 Copyright and computer programs

❑ Restricted acts for computer programs

Of the acts restricted by copyright, four are worthy of special mention as far as computer programs are concerned. These are:
■ copying the work;
■ issuing copies of the work to the public;
■ communicating the work to the public; and
■ making an adaptation of the work

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 Copyright and computer programs

❑ Permitted acts for computer programs

When it was decided in 1985 to classify computer programs as literary works for copyright purposes, the usual
exceptions to copyright infringement applied. The Act contains a great many
exceptions, called the ‘permitted acts’:
■ ‘decompiling’ an existing computer program for interoperability;
■ making necessary back-up copies;
■ copying and adapting for lawful use including error correction;
■ observing, studying or testing a computer program to determine the underlying ideas andprinciples.
These four important exceptions to copyright infringement apply only if carried out by a lawful user of the computer
program (for example, a person having the right to use the program under
a license agreement) and are described and examined in detail below. But first, it should be
pointed out that the previous law may have covered the above acts in some circumstances. For
example, fair dealing for research purposes might have allowed decomplication to achieve interoperability, though now
fair dealing for research is limited to non-commercial purposes.

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 Copyright and computer programs

❑ Programming languages and instruction sets

A computer program is written using a specific computer programming language. Languages

vary enormously from the basic instruction set of the central processing unit to high-level languages, such as BASIC and C, and languages
.
used for programming logic. A great deal of
skill, imagination and effort goes into the design of a new programming language and the development of new languages will be encouraged if
some form of protection is afforded to them.
However, the exercise of rights in languages could seriously interfere with the licensing and distribution of computer programs and databases.
In principle, there is a strong argument for
saying that programming languages are ideas and, as such, cannot be protected by copyright.

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 Copyright and computer programs

❑ Ownership, employees and freelance programmers

The basic rule is that the author of a work is the first owner of the copyright in the work.
An exception which applies to literary, dramatic, musical or artistic works (and films) is where the work is made by an ‘employee in
the course of his employment’, in which case the employer
.becomes the first owner of the copyright in the work, subject to any agreement to the contrary Further exceptions apply in the case
of Crown copyright, Parliamentary copyright and copyright of certain international organizations. These latter exceptions are not
considered further.
The main issues in terms of writing computer programs and other items of software is
whether a work has been made by an employee in the course of his employment or, if not,
whether there are any provisions concerning ownership of copyright. If there is no agreement as to ownership of copyright where,
for example, a person creates a computer program as a self-employed consultant, can the law step in to resolve any potential
difficulties? This is a problem that is very common. All too often, a company commissioning the creation of a work of copyright
assumes that it will own the copyright because it has paid for the creation of the work.
That assumption is wrong.

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 Copyright and computer programs

❑ Open source software and copyright

A person may write some software such as a computer program and be quite happy to allow others to use, modify, copy and distribute
it free of charge.
A significant amount of ‘free’ software (often referred to as ‘freeware’) is available.
Open Source Software (for example, Linux) is the term used for software distributed freely under the Open Source Initiative’s
requirements for licensing arrangements.
A number of organizations, individuals and software companies distribute software in this way under licenses controlling the
distribution and use of open source software and many such licenses are available.
The fact that software is made freely available does not mean that it is not subject to copyright or other intellectual property rights, if
applicable.
The normal rules apply as to subsistence of copyright and the identity of the author and owner of the copyright.
Furthermore, in some jurisdictions such as the UK, except in relation to computer programs, the author will enjoy the moral rights to be
identified as the author and to object to a derogatory treatment of the software (for example, in relation to copyright databases and
other works, such as audio-visual works and documents, included in the software).

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 Copyright and computer programs

❑ Copyright databases in the UK before 1 January 1998

Databases were not expressly mentioned in the Copyright, Designs and Patents Act 1988 but
were potentially protected by copyright as compilations, provided they were original in the sense
of being the result of skill or judgment. Copyright might have subsisted at two levels if the database was a collection of individual
works, as mentioned earlier. Each work contained in a database might have had its own copyright in addition to a separate copyright in
the database as a
database. If the individual contents of the database were small pieces of information, such as in
the case of a database of customers’ names and addresses, these would not be protected by copyright independently to the database
which could still be subject to copyright providing it was the
result of skill or judgment expended, for example, in the overall design of the database, including the design of its structure.
If the work involved in designing a database was a simple matter, not requiring skill and judgment, then it would not have its own
copyright.

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 Copyright and computer programs

❑ The US and the ‘sweat of the brow’ principle

The ‘sweat of the brow’ principle, affording copyright protection to works which are the result
of labor only.

❑ Protection of databases in the UK and Europe

A database is protected by the database right if its making was:
– the result of a substantial investment in human, financial or technical resources;
– in obtaining, verifying or presenting the contents of the database.

❑ Copyright databases
section 3(1) of the Copyright, Designs and Patents Act 1988 was amended and ‘database’ was added to the non-exhaustive list of works that
are literary works. As databases are no longer compilations for copyright purposes, there are now some differences as to how databases and
compilations are treated. Of course, many of the provisions are the same for both but it should be noted that there is a difference in the fair
dealing provisions and there is a special permitted act that applies to databases.

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 Copyright and computer programs

❑ The database right

The maker of a database subject to the database right is the person:

– who takes the initiative in obtaining, verifying or presenting the contents; and
– who assumes the risk of the investment in doing so.

For the database right:

– there are qualification requirements;
– the basic term of protection is 15 years;
– infringement is by extracting and/or reutilizing a substantial part of the contents;
– an accumulation of insubstantial extractions and/or reutilizations may infringe;
– there are a number of exceptions to infringement; and
– there are presumptions in relation to the name of the maker and year of publication

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