Notes

How it Started - US

• 1974 - The US Congress established the National Commission on New Technological Uses of Copyrighted Works (so-called CONTU).
• 1980 - Software Copyright Act amending US Copyright Act
  • Introduced definition of computer program, protection and exceptions to copyright for utilization.

How it Started - EU

• Directive n. 250/1991 of 14 May 1991
• Directive n. 24/2009 of 23 April 2009 (EU Software Directive)
  • Main focus of the class will be on EU Software Directive.

Importance of Copyright Protection on Software Recitals 2 and 3 of EU Software Directive:

• "The development of computer programs requires the investment of considerable human, technical and financial resources while computer programs can be copied at a fraction of the cost needed to develop them independently. Computer program are playing an increasingly important role in a broad range of industries and computer program technology can accordingly be considered as being of fundamental importance for the Community's industrial development".

Legal Definition of Computer Program

No definition in the EU Software Directive

In the US: "A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result" (Tittle 17, Paragraph 101, USC).

A computer program, or software, is a set of instruction capable, when incorporated in a machine-readable medium, of causing a machine having information-processing capabilities to indicate, perform or achieve a particular function, task or result (WIPO Model Provisions on the Protection of Computer Programs, 1978).

• Source Code, programming language used by the programmer.
• Object Code, the program as stored in the computer, the one and zero (binary code) that tell the computer precisely what is supposed to do.
• Compiler, a computer program to convert source code into object code.

Object of Protection Article (1) EU Software Directive Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term "Computer Programs" shall include their preparatory design material.

Accepted fictio iuris: computer programs' language and coding = literary works (literature).

Idea/Expression Dichotomy, Article 1(2) EU Software Directive Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protect by copyright under this Directive.

Protection "in any form"? Subject matter of protection is the expression in any form of a computer program which permits reproduction in different computer languages.

Software functionality cannot be protected as such. To accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolize ideas to the detriment of technological progress and industrial development" (CJEU decision of 2 May 2012)

Protection "in any form" CJEU case law (BSA and SAS decisions)

• Subject matter of protection is the expression in any form of a computer program which permits reproduction in different computer languages.
• The source code and the object code are entitled to copyright protection.
• The functionality of a computer program, the programming language and the format of data files used in a computer program are not a form of expression of that program (SAS decision).

GUIs Graphic User Interfaces (GUIs), which do not enable the reproduction of the software, are not considered in CJEU case law as computer programs (CJEU decision of 22 December 2010).

Anyhow, GUIs are not protected under EU Software Directive, but they can be protected by copyright as such, or by different IPRs (e.g. design or trademarks). In particular, the graphic user interface is an interaction interface which enables communication between the computer program and the user. In those circumstances, the graphic user interface does not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.

It follows that that interface does not constitute a form of expression of a computer program within the meaning of Article 1(2) of Directive 91/250 and that, consequently, it cannot be protected specifically by copyright in computer programs by virtue of that directive.

However, the graphic user interface can, as a work, be protected by copyright if it is its author's own intellectual creation. It is for the national court to ascertain whether that is the case in the dispute before it. When making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function. (CJEU decision of 22 December 2010, case C‑393/09, BSA)

Preparatory Design Materials

• Preparatory Design Materials of computer programs are protected by copyright, insofar they are such that a computer program can result from them at a later stage (CJEU decision of 22 December 2010).
• PDM = As long as they are sufficiently complete in terms of organization and communication of the information, they provide for the subsequent creation of the computer program.
• PDM = Can be compared to the screenplay of a film.

Italian case law:

• Preparatory materials which include only a broad analysis of the users' needs and of the functions that the computer program mut have from a commercial standpoint are not protected by copyright (Court of Rome, 6 May 2009 in DeJure).
• Flowcharts, as long as they simply describe how the different modules of the software interact with each other are also not protected by copyright (Court of Bologna, 17 January 2006, in Dejure).

Basic View on Steps of Computer Programming Computer Associated International v. Altai, Inc.

• Identify ultimate function or purpose of the program
• Break it down into "subtasks": subroutines or modules
• Arrange subroutines or modules into organizational or flow chart
• Parameter list design for each subroutine (the form in which information is passed between modules)
• Refining structure (for speed, efficiency, user experience, externalities such as memory)
• Translating the program structure into written language = coding (source code).
• Compiling source code into object code.

Downside of Copyright Law Protection is Secrecy, keeping software secret increases also the number of problems relating to interconnection of software and you are not incentivizing innovation.

Originality Article 1(3) EU Software Directive

• A computer program shall be protected if it is original in the sense that it is the authors' own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.

Recital 8 EU Software Directive

• In respect of the criteria to be applied in determining whether or not a computer program is an original work, no tests as to the qualitative or aesthetic merits of the program should be applied.

Copyright originates with the creation (and in some jurisdictions, also fixation) of the work: registration is not mandatory. It's a matter of... creative choices: "author's (programmers's) fingerprints". Not original if the features of the work are dictated by technical considerations, rules or constraints which leave no room for creative freedom (CJEU, Football Dataco). It will be though rare that any program which is not a slavish copy of another program will not be the result of an intellectual creation of the programmer (Tritton).

Even the coding of very simple scripts can be done in enough differing ways so that the choices is still an intellectual task requiring creativity and choice (not merely labour and effort) (Tritton).

Who is the author of software?

Exclusive Rights Article 4 EU Software Directive The exclusive rights of the rightsholder shall include the right to do or to authorize:

• The permanent or temporary reproduction that includes if necessary, for the reproduction: loading, displaying, running, transmission or storage.
• The translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program.
• Any form of distribution to the public, including the rental, of the original computer program or of copies thereof.

Exceptions

• Article 5 EU Software Directive - Lawful User

  • A lawful acquirer can reproduce and alter - if needed for loading, displaying, running, transmission or storage and error corrections - in the absence of specific contractual provisions to the contrary. The exclusive rights are so broadly worded that it was necessary to clarify that the lawful acquirer could USE the software!
  • A person having a right to use the computer program can make a back-up copy and this cannot be prevented by contract in so far as it is necessary for that use (which is inevitably met because programs break down and degrade occasionally).

• Article 5(3) EU Software Directive - Research

  The person having a right to use a copy of a computer program shall be entitled, without the authorization of the rightsholder, to: observe, study or test the functioning (loading, displaying, running, transmitting or storing) of the program in order to determine the ideas and principles which underlie any element of the program. Meaning? If the acts of loading, running, reproduction etc. have been permitted for a licensed purpose (using the software), a party is entitled under this provision to observe, study or test the functioning of the program.

• Article 6(1) EU Software Directive - Decompilation

  The authorization of the right holder shall not be required where reproduction of the code and translation of its form are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

• Those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to do so.

• The information necessary to achieve interoperability has not previously been readily available to the persons referred to in the previous point.

• Those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.