IP advice: The protection of computer programs

In this issue, we look at the copyright issues associated with computer programs, with the help of Cam Gatta, a solicitor in D Young & Co's Dispute Resolution and Legal Group. This is the first of of two articles looking at certain aspects of the protection afforded to computer programs by copyright and patents. Copyright can protect several 'elements' of a computer program and its main advantage is that it is an automatic right in the UK. UK copyright will automatically subsist in a 'work', provided the criteria for protection are satisfied. These include: (1) Originality: this does not mean that the work has to involve creativity or artistic merit, but simply that a work 'originates from its author', that is it is the author's own intellectual creation or an expression of his/her 'independent' skill, labour and judgment; (2) for certain types of work, the requirement to be recorded in a material form; and (3) the presence of factors connecting the author or the work to the UK (or to a country party to international copyright treaties). While copyright protection is conferred relatively easily, the scope of protection (and consequently the monopoly granted) is narrower if compared with that provided by trade marks or, even more so, patents. As observed by the Court of Justice of the European Union (CJEU) in relation to computer programs (but it applies to all types of copyright works), 'copyright protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs, provided that they refrain from copying' (SAS Institut Inc vs World Programming Ltd, C-406/10). The rationale is that, doing otherwise, would 'make it possible to monopolise ideas [as opposed to the expression of ideas], to the detriment of technological progress and industrial development'. Under the Copyright, Designs and Patents Act 1988 (CDPA), computer programs are stated to be a type of literary work in which copyright subsists. However, there is no definition of computer programs in the CDPA or in the relevant EU legislation (Council Directive 2009/24/EC on the legal protection of computer programs, the 'Software Directive'). In the recent cases of SAS Institut (see above) and Bezpecnostn softwarová asociace - Svaz softwarové ochrany vs Ministerstvo kultury (Case C-393/09), the CJEU concluded the following are protectable under the Software Directive: • source code; • object code; and • the preparatory design materials (including functional specifications, graphs and flow charts) leading to the development of a computer program, provided that the nature of the preparatory materials is such that a computer program can result from them at a later stage. There is uncertainty as to whether preparatory design materials are considered to be part of the related computer program or a separate copyright work. This point might become relevant when determining issues of ownership (and the right to exploit) the copyright. Conversely, the following are not protectable as a computer program under the Software Directive: • The ideas, principles, logic and algorithms underlying the programs; • Graphical user interfaces, such as those parts of a computer program which enable communication between user and computer; • Functionality, business logic or functional structure of a computer program. Therefore, it would not be an infringement of the copyright in a computer program to replicate its functionality in another program, provided that one has no access and has not copied the source code and the object code of the former; • The programming language and data file format. However, if one obtains the source code or object code relating to the programming language and data file format used in a computer program and then creates similar elements in another computer program, that conduct could be an infringement of the copyright in the original source code and object code. Also, this does not rule out the possibility that programming language and data file format might be protected as other types of copyright work; and • Commands, either individually or as a compilation, and the syntax of the commands. Next time, we will look at the patentability of software.