Information Technology Law

Intellectual Property Law

omputer Programs
omputer programs are complex structures oI commands which are not comprehendible to the
average person.
They are protected as literary works under the opyright and Related Rights Acts 2000-2004,
however this is not as all-encompassing a protection as many would like.
Literary works are deIined under S. 22(1) oI the opyright and Related Rights Act 2000 as '.a
work.which is written, spoken or sung.¨
S. 2(1) oI the 2000 Act expressly includes a computer program in this deIinition.
These acts implemented the Directive on the Legal Protection oI omputer Programs (91).
Difficulties:
A program will not be protected unless it is the authors own intellectual creation, this may increase
the standard oI originality required above the substantive skill or labour level. Also, this may cause a
problem in the context oI updates, as they may not pass the originality threshold.
Deciding whether there has been an inIringement oI a copyright on a computer program is extremely
diIIicult because the traditional principles used to identiIy a substantial similarity may be oI
'.limited and questionable utility.¨ here. (Kelleher and Murray)
There is also the problem oI non-literal copying oI a program i.e. where there is no allegation that the
code oI the program has been copied but the look and Ieel` oI a copyrighted program.
There is no consensus as to whether or not soItware is expressive oI Iunctional. II it is the latter then it
should never have been the subject oI copyright protection.
Reactions:
There are claims that computer programs and soItware should not have owners as copyright grew up
with printing and is thereIore a 'bad Iit¨ with the much more 'Ilexible area oI digital technology¨.
(Richard Stallman)
One reaction to the perceived inadequacies oI copyright in the context oI programs is the emergence
oI copyleIt` (or copywrong`). This is a social movement against copyright.
Another is the existence oI Iree soItware`.

$emiconductors
A semiconductor chip is a miniaturised electronic circuit that has been manuIactured on the surIace oI
a thin substrate oI semiconductor.
They are highly valuable products as evidenced by the impact Intel had on Ireland`s past prosperity.
Difficulties:
It is the topography oI the chip that causes the problem Ior intellectual property law. This is basically
the physical arrangement oI the components on the chip. Reverse engineering (through photographing
and chemical dissolving) is the primary issue.
Reactions:
Legislation has been brought in to combat this problem, the European ommunities ( Protection oI
Topographies oI Semiconductor Products) Regulations 1988.
It created a negative right, similar to copyrights and patent rights, which lasts Ior 10 years.
However, the legal diIIiculties surrounding semiconductors clearly demonstrate the tension that exists
between innovation and protection.

atabases
The Database directive was implemented by Part V oI the 2000 Act.
It created the sui generis right, which alongside copyright, acts to protect databases. This was done to
try and encourage the creation oI European databases.
Difficulties:
However, as Kelleher and Murray noted it would appear that it had the opposite eIIect as the ratio oI
databases in Europe to the USA has increased Irom 2:1 to 3:1.
The directive makes clear that its provisions do not apply to computer programs used to operate
databases, however it is oIten hard to distinguish between the program and the database itselI.
Reactions:
An E commission report in 2005 considered the Iollowing options aIter an evaluation oI the
directive.
1. Repeal the whole directive.
2. Withdraw the sui generis right.
3. Amend the sui generis provisions.
4. Maintain the status quo.
As the last one was chosen, the problems associated with databases still exist. However, the report
helped to create awareness oI the issue.


Patents
Difficulties:
The Patents Act 1992 S. 9(2)|c| disallows patents Ior programs oI a computer as it would stiIle
innovation.
However, under A. 52(3) oI the European Patent onvention, iI the program is part oI something a
patent may be available due to the words 'as such¨.
Traditionally there was a reluctance to grant patents on soItware. 499schalk (1972)
As well as this, patents on soItware can be quite controversial, Ior example Amazon`s one click
purchase patent.
Reactions:
In Europe there is a movement attempting to change this. In 2002, there was a ommission proposal
put Iorward Ior a directive 'on the patentability oI computer-implemented inventions¨.

Internet ontent
The internet possibly poses the greatest threat to modern copyright law in the sense that it makes it so
easy to distribute copyrighted works that can be reproduced electronically.
The internet and more speciIically the use oI Peer-2-Peer Iile sharing, challenges the ability oI
copyright owners to exploit their work.
As noted in r4ks9er (2005) the advantageous nature oI P2P systems is apparent in their
'.substantial and growing popularity¨. In this case oI 3 combined appeals, inIringement was held as
there was 'evidence oI inIringement on a gigantic scale¨ as well as the Iact that the deIendants
eIIectively induced inIringement.
In the Australian decision oI Sharman (2005) the name oI the P2P system was KaZaA. Here it was
held that Australian copyright law had been inIringed by the deIendants authorizing the inIringement.
II this case was t happen in this jurisdiction, Kelleher and Murray Ieel that although similar reasoning
would be deployed, the provisions oI the RRA 2000-2004 might not apply to secondary
inIringement.
In Naps9er (2001) there was a centralised index in the P2P system and so it was relatively easy Ior the
American court to Iind inIringement.
Newer systems, such as those used by Bit Torrent dispense oI a centralised search mechanism, makes
illegal downloads harder Ior copyright owners to search Ior.
As Lloyd points out, a perception oI imbalance between the rights aIIorded to producers and users can
'.only encourage a disregard Ior the law¨.
As Murray notes 'The inIormation society is built on the sharing and exploitation oI inIormation,
while copyright law is about the protection and control oI inIormation.¨
It is submitted that intellectual property law is alive and well, as the 3 decisions and countless others
demonstrate. However, computer technology used by individuals and corporations alike, may Iorce a
change in the way intellectual property law operates due to the Iact that it is clearly causing problems
Ior IP law and the huge problem oI enIorcement made clear by the irc4m and UPC cases.
An example oI a company pushing the boundaries oI intellectual property law is Google. Dues to such
actions as the Gutenberg project and large scale caching many people view it as an '.amoral
menace.¨ ¦ Porter, The Observer (2009) }
Its apparent disregard Ior the ideas and belieIs encapsulated by copyright law over the last 300 years
is not important here, what is important is that its actions demonstrate how intellectual property law is
being stretched by advancements in computer technology.

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