Software and the law
Software and the law

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Software and the law

3.1 Copyright

Copyright has been of central importance in the field of publishing for 200 years, and now is as important in the field of software and the internet. Copyright gives the right to the ‘originator [of a work], or his or her assignee, for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same’ (Concise Oxford Dictionary, 9th edition).

It is important to note that copyright law does not protect the ideas underlying the work, but only the expression of those ideas. This means that having examined a work, or a number of works, an author is free to create a new work through the re-expression of the ideas underlying those other works. However, this does not mean that simple re-keying of text with small changes or redrawing a diagram or re-implementation an animation is permitted.

Compilations and databases are explicitly protected as intellectual property.

When software first became an area of concern in the second half of the 20th century, copyright was used for its protection. In 1991 the European Union issued a directive requiring all member states to use copyright law for protecting software, spelling out the rights and exceptions (European Union, 1991); in 2000 it reported on the success of this initiative (European Community, 2000). Nevertheless copyright has not proved adequate (not everyone agrees here!), since it only protects the way the software is written and not the underlying algorithms; in consequence, software is increasingly being protected by patents (see next subsection). In computing, copyright is now much more important for the protection of internet websites and for documentation.

Traditionally, different kinds of artistic work have been protected by different pieces of legislation – so music has been protected separately from literature and separately from film, and so on. However, there is a move to ‘convergence’ as everything becomes digitised and intermixed within multimedia products. Digitisation raised new problems, with the need to protect works against new actions. Thus the treatment of all rights under the general heading of intellectual property right, or at least general copyright, is today the only reasonable way forward. Further, the ability to distribute digital material over the internet makes intellectual property rights a global problem that requires international agreement – as you saw earlier in this course.

In copyright, the author or originator of the intellectual property is given a number of legal ‘rights’. These circumscribe what the owner can do and in some cases cannot do, and what other people can do with the intellectual property.

The detail of how the right is claimed and what it gives the owner of the IPR varies between legal jurisdictions. In some cases the right has to be explicitly claimed or registered, as was the case in the US before 1989, while elsewhere, as in the UK, the very act of creating the work automatically gave the creator the rights. The move is now towards the latter, through decisions taken as part of various international agreements described earlier – the Berne Convention, the Uruguay Round of GATT and TRIPS. Even though it may not be necessary to place a copyright line on the work, it is still advisable.

The actual right given is exclusive use for the lifetime of the creator plus 70 years. The US and others had previously limited rights for life plus 50 years, but shifted to life plus 70 years to match European practice as part of the process of harmonising copyright law internationally.

There are exceptions to granting of exclusive rights recognised by the law that will be covered in greater detail later. Where exceptions are made, this is to protect the public interest. What is allowed varies – for example, in the US a teacher can read from a work in the classroom but cannot distribute copies, while in the UK a researcher can make a copy of part of a work for personal use. Very limited quotation from works is accepted as ‘fair dealing’.

All other use requires reference to the copyright owner for permission, and may involve paying a fee. Finding out who rights owners are can be very complex – even a simple diagram in a text can involve more copyright owners than you might imagine. Rights can be assigned to other persons or legal entities – in fact, this is common. In some jurisdictions, such as the US, all rights can be assigned, while in others such as France some rights are inalienable, such as the ‘look-and-feel’ of an artistic work.

Copyright protects the expression of an idea, but not the idea itself.

Any breach of an intellectual property right can be viewed as theft, just as most people would consider taking someone else’s physical property to be theft. Yet the kinds of works protected by copyright laws are seen as different, and the introduction of new technologies is making breach of copyright easier.

How breaches of copyright are dealt with varies between jurisdictions. In some places, such as the US, breaches are largely handled through the civil courts using statutory damages: copyright owners group together in societies and together make random checks to see if copyright is being breached, and if it is, take joint action to recover money lost and punish the offender. In the US the music industry associations conduct some 500 lawsuits a year in a bid to enforce their members’ copyright interests (see Saffer, 1997). In other countries enforcement might be through criminal law, which is necessary to deter major and systematic infringers.

The increasing use of internet services that allow sharing of audio and video content (e.g., YouTube) has made it harder for copyright holders to keep track of how their content might be shared in breach of copyright. This has required internet service providers to develop policies and procedures to help copyright holders assert their intellectual property rights and penalise users who infringe copyright by sharing content to which they have no rights. Technological developments such as peer-to-peer file-sharing (as with, for example, BitTorrent) distribute content by putting portions of files across many computers located all over the world. Such developments make it even harder to address the problem of jurisdiction.

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