This chapter discusses protection under the law of copyright. Topics covered include copyright basics; obtaining copyright; forms of protected work; the requirement of originality; copyright ownership; copyright infringement; the nature of copying; other rights belonging to the copyright owner; the development of software copyright; and literal and non-literal copying. The law of copyright is perhaps the major branch of intellectual property law relevant to computer software. Virtually every piece of software will be protected by copyright. The main issue concerns the extent of the protection that is offered. Computer programs are generally protected as literary works. This was appropriate in the early days where computers performed essentially functional tasks – often associated with mathematical calculations. It is arguable that modern software, which often makes extensive use of graphical images, is more akin to an artistic work than a literary one. Regardless of categorization, the courts in the United Kingdom have applied a narrow interpretation of the scope of copyright. Reproduction of the underlying code will be unlawful but replication through independent work of the effects produced by the code (often referred to a non-literal copying) will not.
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16. Copyright protection
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17. Enforcement issues
This chapter considers two main topics. It first examines the provisions of the EU’s Copyright in the Information Society Directive, which sets out to amend some provisions of copyright law better to fit the realities of an online world. It then looks at some of the issues associated with enforcement of copyright, considering the extent to which intermediaries such as Internet Service Providers (ISPs) might be held liable for infringing acts committed by their users. Attention is increasingly paid to the possibility that rights owners might proceed against users whose actions infringe their rights. In many cases this will require the cooperation of ISPs and a major component of the Digital Economy Act 2010 is concerned with the manner in which this process might be managed.
