Retrospective - Computer Software and Copyright

In a world where everything is becoming more and more digital and reliant on computers to handle most tedious or complex tasks, software is king; it is what executes these tasks and makes things easier to do on the aforementioned devices. With the software business booming, more and more value can be placed on having the right software for the right task in the highly competitive space, and with that the desire to protect your product. Even in the wake of the Alice decision some time ago (discussed on this very blog here and here) the protectability of software still remains, albeit quite hindered. In light of the more difficult protectability of software through patents, copyright shines brighter and as a possible alternative, yet poses a question which might be less glaringly obvious to most: is software protected under copyright?

A fairly recent case in the UK Court of Appeals, SAS Institute Inc v World Programming Ltd, attempted to take on this issue and decide once and for all whether copyright does afford protection to software and its underlying code. The SAS Institute is a software development company well-known for its analytical software, often referred to as the SAS System (or just plainly SAS). A core component of the SAS System is SAS Base; a piece of software which allows the user to easily write and run scripts to analyze and use data. The scripts themselves were written in a programming language developed by SAS called SAS Language. Finally, the SAS Base software can be extended upon by three additional components: SAS/ACCESS, SAS/GRAPH and SAS/STAT respectively. In addition to the software SAS have also written manuals for the use of its software. The SAS environment was quite tightly controlled, and customers had no secondary options which to use in the execution of their developed scripts for the platform (the SAS Language only functioned through SAS' System). Their competitor, World Programming, sought to create an alternative piece of software capable of utilizing the SAS Language, so that any programs written in the Language can be used in both their suite and SAS' - the end-result being a program called the World Programming System. The software endeavored to mimic SAS' System as closely as possible; however they had not accessed SAS' source code in their development, merely copying the outputs and inputs of the System. Due to this, SAS sued WPL, asserting that the company had copied its manuals; through the copying of the manuals they had infringed SAS' copyright in their extension components; WPL had infringed its copyright in a version of its System, the Learning Edition, and breached its terms in its misuse; and WPL had infringed SAS' copyright in its manuals after creating its own version called the WPL Manual.

Being 'creative' in programming can be difficult

Confusion in terms of acronyms aside, the court was therefore faced with the ultimate determination of whether copyright exists in SAS' software, and whether WPL had infringed that copyright. Under EU legislation, more specifically Directive 91/250/EEC (now governed by Directive 2009/24/EC with no substantive differences), computer programs are wholly protected by copyright as a form of expression; however the underlying principles of those programs are not. To put this into more simple terms, the code executing a specific function in its particular expression can be protected, but the idea of that execution is not, allowing anyone to create a program doing the same thing, so long as the expression of that execution is not the same as other expressions of it (i.e. different code, same result). Computer programs have since been included in the UK Copyright, Designs and Patents Act 1988, under section 3.

To look at things further, the scope of what is protectable under the above Directives was left quite open, but was subsequently added to in the case of Infopaq International v Danske Dagblades Forening, where the European Court of Justice saw that copyright protects an author's "...intellectual creation" (the wording used in the Berne Convention), potentially encompassing programs quite readily if it can be seen as such a work - supplanting this definition in the Directive's interpretation. What is important in this term's application, in the Court's judgment, lies within whether a computer program can be seen as an 'intellectual creation', and in assessing this the court must decide that if the expression within the computer program is purely a technical one (i.e. derived from necessity for things to work right), the work cannot be seen as an intellectual creation under this definition. To put things in more simplistic terms: "...the author [has to be] able to express his creative abilities in the production of the work by making free and creative choices". If a programmer, in the creation of a specific application, can express his or her creativity and choices in how the program works, it can be protected by copyright. Even if the program has very specific functionality, or combines several different functional approaches to the execution of its desired task, the law does not protect it under copyright. In the court's view the copyrightability of functions or functionality, no matter how well used or combined, would be tantamount to the copyrightability of an idea, and therefore is not within the remit of copyright.

Finally, the court had to assess whether the manuals created by SAS are protected as works, and whether WPL had infringed those manuals' copyright protection.Their content was largely informative, and therefore would encompass most of the 'ideas' expressed in the aforementioned programs, or as expressed by Lord Justice Lewison: "...what counts as an idea, for the purposes of a computer program, also counts as an idea for the purposes of a manual". With this in mind, should the manual express the idea in a way which can be seen as protectable, it can fall within the remit of the law. His Lordship dismissed both claims on the manuals, effectively dismissing their protection due to a lack of any protectable expression, as they merely described the function of the programs without adding anything original on the author's part.

In the end SAS lost their appeal and the Court of Appeal closed the door on the copyright protection for programs, at least for the most part. The case was appealed to the UK Supreme Court, however leave was not given, solidifying the law's position through the Court of Appeal's judgment. The position presented in the case differs drastically to what has been discussed in the United States, where programs can be protected by copyright. Nevertheless the case is without a question an important milestone in relation to copyright and computer software, and this writer for one believes it will stay as such for a while.

Chinese Intellectual Property Law (Part 1) - Copyright

With China having become a huge economic power in the last few decades, I thought it'd be about time to write a short overview of the different aspects of intellectual property law in China. These posts will be split into three parts, each discussing a different area. We'll kick things off with copyright law. Often the more disputed topic in the area, when close to a third of all counterfeit imports to Europe were from China in 2009.

The Chinese copyright legislation has been an issue for most of the 1990s and early 2000s, as other nations saw their laws as inadequate and their enforcement of the provisions lax at best. The first iteration of their copyright law was enacted in 1990; the Copyright Law of the People's Republic of China (English translation can be found here, Chinese here). 

The aim of the legislation is simple: 

"This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences". 

One key difference has to be noted; the Chinese law actively encourages the dissemination of works. Often omitted in especially common law nations, the notion of dissemination of works is more often than not left on the back burner, as a hand-down in the form of "fair dealing" or "fair use". While still being a part of the given legislation, it seems it's not as intrinsically embedded in the laws as it seems to be in the Chinese equivalent, at least on the face of it.

The law provides protection for the typical assortment of subject matters that most legislatures seem to have offered, such as written, oral, photographic and graphic works. The protection is also offered to foreign nationals who are subject to treaties to which China and their nation are signatories to, such as the Berne Convention and TRIPS. The legislation is heavily modeled after the Berne Convention and thus all aspects of the law need not be expanded upon further, as they mirror most national legislations in common law countries, and possibly civil law countries as well.

Copying taken to an extreme

Terms for copyright are, again, very similar to ones found in, for example Australia and the UK, where protection is offered for life and 50 years after death, aside from cinematographic works which are given 50 years of protection from its first publication. The latter differs from Australia for example, where the duration is 25 years after initial publication.

Some issues are presented in the Chinese "fair dealing" provisions or situations where works may be used without permission or payment to the creator of the work. Several of the categories, such as the permission to rebroadcasting or publishing of speeches or content published by other newspapers or news outlets, are opt-out provisions. By default there is an assumed ability to reuse your content, even by competitors. Secondly, there is a provision allowing the live performances of works for free. This provision allows for a very wide and open-ended ability to utilize content at any events which don't charge an entrance fee, such as conventions or festivals. Not really the biggest of issues, but does leave a gaping hole when it comes to the protection of a performer's right to their content. Most of the "fair dealing" provisions in the legislation are standard ones found in most common law countries, either in express categories or through the common law.

Overall the legislation follows Berne very closely, and should sound familiar to those who've dealt with it before. Not being entirely familiar with the starting point of the Chinese legislation it is hard to say just how far they have come in the last few decades, but surely the standard of protection has gotten better as the country has become more and more "capitalist".

There has been contention over the legislation since its inception. China has been dispute settlement through the instigation of other countries at the WTO 30 times since 2002, after it became a member of the organisation in 2001. There have been noted issues in especially the enforcement of the protection of intellectual property rights, where China has been lacking for years.

Even with its shaky emergence into the wider intellectual property regime, China has made strides towards a more universally accepted standard of protection given to intellectual property rights. The National Copyright Administration of China released its Draft Proposal only a few months ago, which would bring about much needed amendments to the current legislation. The aim of the amendments is to extend the scope of copyright, to encourage its registration, include resale royalties and to amend restrictions applying to certain types of copyright. When and how the law is finally amended remains to be seen, but it should bring China closer to a more international standard.

(Part 2 discussing Trademarks can be found here, Part 3 discussing Patents here)