Copyright, Is a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works. Such as poetry, novels, movies, songs, computer software, and architecture. Copyright is a legal right created by the law of a country that grants the creator of original work exclusive rights for its use and distribution. This is usually only for a limited time. A major limitation on copyright is that copyright protects only the original expression of ideas, ad not the underlying themselves.
Introduction : –
This article opens with a review of the historical development of copyright law as it relates to computer software. Procedures for securing a copyright are then discussed, as well as the requirements for registering that copyright. Attention is then turned to recent developments in copyright law impacting those in the software industry, including issues of copyright ownership, infringement, validity, and enforceability; recordation of security interests; software rental prohibitions; and the validity of shrink wrap licenses. The objectives of this analysis are simple: (1) To provide an overview of important copyright issues for consideration by those in the software industry, and to raise the priority given to such matters; and (2) to demonstrate why one must constantly revaluate internal policies and practices in light of the rapidly changing rules governing copyright protection for computer programs. Ultimately this analysis should educate the reader in contemporary issues of software copyright protection that need to be addressed in order to maximize the value of one’s own copyrights, while minimizing the risk that one’s products will run afoul of the copyrights of others.
A HISTORICAL PERSPECTIVE
The U.S. Constitution gives Congress the power to promote the progress of science by securing for limited times to authors the exclusive right to their writings.’ Exercising that power, Congress enacted the Copyright Act of 19092 which provided protection for “all the writings of an author”3 including books.’ In 1964, the Copyright Office announced that it would register claims to copyright in computer programs under the 1909 Act as “books”.5 from 1964 to 1977, copyright claims in less than 2000 programs were registered.6 The 1909 Act was superseded by the Copyright Act of1976, which became effective on January 1, 1978.’ . The 1976 Act provided protection for “original works of authorship fixed in a tangible medium of expression”‘ including “literary works.”9 The Legislative History of the 1976 Act explains that copyright protection for computer programs existed under the 1909 Act,10 as would also be the case under the new Act since the term “literary works” includes “computer data bases, and computer programs …. 11 While computer programs were copyrightable material under both the 1909 and 1976 Acts, it was not clear to what extent, if any, the copyright owner could exclude others from using them in a computer-that is, pursue “an action for infringement… by means of a computer.”‘ 2 Congress could have tackled that thorny issue in the 1976 Act. Instead, Congress included a statement in § 117 of the new Act that whatever the law had been it would continue to be, without ever stating what the law had been.'” Congress said that “it would be premature to change existing law on computer uses at present” since a commission, appointed by Congress to study the issue and recommend changes was, “now engaged in making a thorough study of emerging patterns in this field.”‘ 4 The commission, established by Congress on the last day of 1974, was called the National Commission on New Technological Uses of Copyrighted Works (“CONTU”).’ The nature of computer programs : Primarily Utilitarian, but protected as a literary work The legislative work The legislative work The legislative history is US and EU suggests the tensions in protecting it under copyright law, but it has now grown as a distinct sub – discipline in copyright systems across the world. Copyright protection for computer programs can swathe copyrightable & non-copyrightable expressions within the continuum of ideas, expressions within the continuum of ideas, expressions and algorithms. Copyright protects only originality in expression. It extends to non – literal elements in a computer program. However, not all non-literal elements are protected expressions. The nature of computer programs: primarily utilitarian, but protected as a literary work. The legislative history in US and EU suggests the tensions in protecting it under copyright law, but it has now grown as a distinct sub – discipline in copyright systems across the world. Copyright protection for computer programs can swathe copyrightable & non –copyrightable expressions within the continuum of ideas, expressions and algorithms. Copyright protects only originality in expression. It extends to non-literal elements in a computer program. However, not all non-literal elements are protected expressions.
Copyright Protection : –
- Creation – protected by IPR: copyright and industrial rights
- Software and database are protected by copyright
- copyright protection issues:
- without notification
- without an authority’s decision
- solely by the creation of the intellectual product – the work
Term of Copyright Protection:-
- Directive 1993/98/EEC – harmonization of term of protection
- m. a. + 70 years
- Author’s life + 70 years
Database – sui generis protection.
The Author’s Rights : – Copyright Protection of the work means author’s exclusive rights: Moral rights & Economic rights. The author may never transfer his moral rights. Assignments of economic rights: varies by countries.
Copyright protection of Computer programs
- Directive 91/250/EEC
- Harmonizing different national regulations
- What is computer program?
- No definition in the Directive
- Preamble:
- the term ‘computer program` shall include programs in any form, including those which are incorporated into hardware; whereas this term also includes 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
- Source code, object code; documentation
- Ideas, methods not protected
Copyright protection Of Database:-Directive 97/7/EC
What is database?
- database shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means
- Electronic or non-electronic databases. For example: dictionary, phone book, outlines databases etc.
Protection
- Copyright – Article 3
- selection or arrangement is the author’s own intellectual creation
- independent protection of works included in the database
- Sui generis – Article 7
- “Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”
Term of protection
- Copyright: p.m. a. 70 years
- Sui generis
- 15 years from the first of January following the year of completion
- substantial change: shall qualify the database resulting from that investment for its own term of protection
Copyright Protection for computer programs :-
In the 1970s and 1980s there were extensive discussions on whether the patent system, the copyright system, as a Sui Generis system, should provide protection for computer software. Computer programs should protected by copyright, whereas apparatus using computer software or software- related inventions should be protected by patent. Copyright law and patent law provide different types of protection. Copyright protection extendsonly to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such, whereas a patents is an exclusive rights granted for an invention, which is produced or a process that provides a new way of doing something or offers a new technical solution to a problem. Patents generally granted after completing an examination procedure by a government agency. Computer protection of computer – software is established in most countries and harmonized by international treaties to that effect.
Conclusion :The Commissioners who comprised the CONTU panel agreed unanimously with the general sentiment that computer software should be provided legal protection. They did not, however, agree on the best method by which to provide this protection or on how far the protection should extend. Almost ten years later there is still no consensus on this issue and software protection continues to be haphazard. The courts, recognizing the need for such protection and operating in the absence of any clear legislative mandate, have begun shaping policy. Protection of the algorithm is hampered in part by an incomplete understanding of the concept by the courts and in part by the traditional bars to copyright ability and patentability. Nevertheless, both patent and copyright law seem to be moving toward some approximate form of protection for algorithms. The question that must next be asked is whether this movement on both fronts is a desired situation. It has been said that “[ln effect, copyright protection has been stretched in Whelan to fill the gap left when the courts denied software inventions patent protection. On the other hand, Whelan can be seen as the application of copyright’s long accepted abstraction analysis to a new form of literary work. This ambiguity demonstrates that a revaluation of the basic principles of copyright and patent law and their application to computer software is needed to bring some coherence to the statutory protection of computer software.
Neha Khatri (Advocate)
(DELHI HIGH COURT)
Master of Law (LL.M.)
UNIVERSITY OF PETROLEUM AND ENERGY
