Despite increasing interest in recent years, software protection is still a rather grey area. One can state certain general principles that have emerged from legislative developments, both statutory and case law. One cannot however be definitive in any broad way. The situation highlights the need to take specialist legal advice before proceeding.
Definition of Software
One difficulty is that a computer programme can be defined in a number of ways e.g. an expression of an idea on a flow chart, an instruction manual in machine readable form or simply as an accessory in computing or data processing.
What is perhaps the most practical approach is to consider the development of a computer programme through various stages. A programmer faced with a problem thinks of a way of solving it. The first physical expression of a solution – a basic skeleton of logical steps is normally called an algorithm. From this is developed a flow chart and then both machine code (readable only by a machine) and a source code (written in a computer language and readable by the human eye). A software product supplied to a consumer contains only the machine readable object code. The source code remains with the supplier.
What can be protected?
At what point in the above developmental sequence does the possibility of protection begin. The current Irish Copyright Act has software provisions based on an EU Directive and therefore reflects the position in all member states. Under it, all forms of software are protected by copyright. Even an object code, which can only be read by a machine, is thus regarded as a “literary work”. However, copyright protection can only begin when there is a physical expression of the work. Thus the idea and principle behind the program would not be regarded as protected by copyright.
Some US courts have held however that copyright protects the "total concept and feel" of a computer programme which seems to go beyond the mere physical expression. In general though, they have meant specific physical resemblances e.g. in screens or user interfaces as opposed to similarities in code.
There could nevertheless be some possibility of protection under the laws of secrecy or confidentiality. There have for example been cases where the basic idea of a television series was held to be confidential information and its unauthorised use as well as reproduction of its first expression could be restrained.
In general then, it seems that protection can definitely apply to anything that is present in a physical form and has required human labour and skill to produce. Something that is at a stage where it can be understood only by the human mind is more difficult to protect.
Forms of Protection
There are basically three forms that apply directly to software i.e. secret know-how, copyright and patents. Clearly though, trade marks can also be of major significance in the marketing and sale of software products even though they do not protect the software directly.
The choice of form of protection will obviously depend on the type of product one is trying to protect. Programmes generally fall into three types:
a) specialist applications programmes produced for a single customer or group of customers;
b) general commercial programmes - for example word processing packages;
c) mass market consumer programmes such as games.
Secret Know-how
Specialist applications programmes can sometimes be very effectively protected as secret know-how. It is necessary to ensure that all who have access to them are specifically bound to confidentiality, that breaches of confidentiality can be readily proven and that the perpetrators can be sued to good effect. This may not be easy in practice of course.
Obviously in the case of programmes that are intended for mass distribution, it is much more difficult to have effective protection by means of confidentiality considerations. It may still be possible to keep algorithms, flow charts etc. secret but this possibility must decrease quickly with time. Companies have however tried to use this confidentiality concept in what are known as "shrink-wrap licences". So called "dongles" are also based on this concept. Whether or not these really work or would stand up to robust legal challenge has been questioned.
Copyright - Software
There has been a trend in most countries to view copyright as the most appropriate means of protection for computer programmes. As mentioned above, this is now reflected in Irish copyright legislation and in that of most developed countries.
It also has to be realised that copyright protects against copying. However, the actual use of a piece of software that has been legitimately acquired may well involve forms of copying. The law therefore permits certain acts to take place but not to be classed as infringement of copyright e.g. anything done in the normal course of loading running, displaying etc., the making of a necessary back-up copy, error correction and general repair and maintenance. A certain amount of decompilation may also be allowed if it is vital for interoperability of a programme with other programmes.
Copyright Ownership- Software
As mentioned above, there is no registration system for copyright in most countries. Initial ownership normally therefore rests with the author - the person who created the work. The law however provides that in the case of software the author is the person who made the arrangements for its creation.
Patents - Software
Computer software does not fit comfortably into the patent system. The European Patent Convention, which now covers most western European countries specifically excludes from patent protection “methods of programming a computer”. At first sight, therefore, it would appear that software is not patentable in European countries. In fact, the European Patent Office has developed an approach which takes into account what is known as “”technical effect”. Thus a computer programme claimed by itself is not patentable and merely loading it into a computer does not change this. If, however, the product provides a clear technical contribution to the known state of the art, then patentability may be possible.
In fact, many “software patents” have been granted in Europe. In an attempt to achieve harmony, at least in the laws of EU countries, the EU Commission produced a draft directive on the matter in 2002. This had a very stormy first reading in the European Parliament. Some progress on agreement was made since, particularly during the Irish Presidency in 2004. It went back to the Parliament in 2005 for a second reading and was rejected. Current Irish Commissioner, Charlie McGreevy is responsible for this area. He indicated publicly after its rejection that he had no plans to take the matter further. Opinions varied right across the board from allowing no patents at all in the area, to a very liberal regime. The proposed compromise would have reflected what currently happens at the European Patent Office (which is not of course an EU institution). This permits patentability where there is definite "technical effect". At the time of writing (May 2006) it is impossible to give any definitive prediction as to what, if any, further developments there might be in this area.
No such exclusion is present in US law and that country is seen as more open to the granting of “software patents”. There has also been several infringement actions in which software patents have been held to be valid.
Although patent protection which gives monopoly rights is obviously stronger than copyright which protects only against copying, it does not follow that a patent should be applied for in every case. As with some other forms of technology, one must realise that a patent application will mean that a detailed description of the software will be published. One may prefer to keep it secret. In particular, given the market lifetime of many software products, paying for twenty year patent protection may not be worthwhile commercially. It may be more appropriate to keep the product secret and produce a Mark 2 improved version after a few years.
There are, therefore, many factors to be considered in deciding on the most appropriate way to protect ones software.
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