Copyright and the Software Developer

Are you a software developer?  Do you know how to protect your own work?  Do you know what would infringe another’s copyright?  Read on to find out more…

Software programs are often complex innovations that include various artistic, creative and functional aspects, any or all of which can be protected by one or more of the different IP provisions available worldwide, including copyright, patents, trade marks, trade secrets, database rights and even registered designs.  However, for software developers, copyright is particularly relevant.  They, possibly more so than any other type of innovator, need to know a) how copyright can protect the many hours of creative work may have gone into a computer program that, not only functions as it should, but is efficient and user friendly; and b) what might infringe someone else’s copyright.

What is copyright?

Copyright is an IP right that exists to protect original creative works like paintings and drawings (‘artistic works’), photographs, cartoons, songs (‘musical works’), plays and films (‘dramatic works’), animations and videos (‘audiovisual works’), etc.

From the perspective of the software developer, these ‘works’ would include, but are by no means limited to, original icons and images, animations and animated or computer-generated characters, and, most importantly, the software code itself.  These elements might arise in relation to apps, computer programs, spreadsheets, screen displays, databases, VR environments, web pages, and so on.  Copyright also applies to original content that is distributed online (including blogs!)

What rights does copyright give its owner?

In general, copyright provides its owner with the exclusive right over the reproduction, preparation of derivative works (for example, converting a game written for a particular games console into a format for hosting by a smartphone), distribution, public performance and display of the works.  So, in simple terms, copyright serves to protect a creative work by enabling its owner to stop others from copying it for (any sort of) commercial purpose without their permission (usually given in the form of a licence which may carry a royalty payment).

How do you get copyright protection?

Copyright arises automatically as soon as a creative work is “fixed” in some way (rather than just an idea in a creator’s mind).  For an original painting or drawings, for example, copyright would arise automatically when (but not until) it is committed to paper or canvas.  An original literary work would attract copyright as soon as the words are written down or typed into a computer and stored.  For a musician, copyright would arise as soon as an original tune has been written down or recorded.  In some countries, such as the USA and China, copyright must be “registered” before the copyright owner can sue a third party for damages in relation to an alleged infringement of their rights, but in general, copyright is an “automatic” or inherent right and no formal registration is required. However, it is advisable to include a copyright notice in the headers of all source code files, help files, user manuals, ‘about this software’ pages, etc. to make the assertion of copyright explicit.

A copyright notice may take the form:

Copyright © [Year of first publication], [Name of owner, which may not be the author]

How does Copyright relate to Software Design?

Many aspects of software involve creative expression, including so-called “literal” and “non-literal” elements.  Literal elements are things like source code and object code, whereas non-literal elements might include screen displays, user interfaces and, in some countries at least, “structure, sequence and organisation of code”.  Both of these types of element could be protected by copyright.  So, for example, the source code of a computer program would be protected in a similar way to a “literary work”, whereas the relationship between various of the software modules and even the ‘general flow’ of the program might be protected as non-literal elements.   Also, creative parts of the screen display or user interface might be considered ‘artistic works’, and graphics and sounds could be protected as ‘audio-visual works’.

Where is the line drawn?

Copyright does not protect functional elements of software.  So, whilst the code itself is protected, the function it performs is not.  For example, if you have developed a piece of accounting software that performs a number of novel functions, the source and object codes for that computer program are protected by copyright as soon as you enter and save it to a computing device, but that does not enable you to prevent a third party from writing their own similar software program that performs the same functions (even if they were your idea and nobody else has ever before provided a software program that performs those particular functions).  If those novel functions have some technical character, then a patent might offer an appropriate way to protect them.

What is copyright infringement?

The key word here is “copy”.  In general, a person infringes another’s copyright in a creative work if they copy that work (or a large part of it) for commercial purposes.  So, in order to successfully sue someone for copyright infringement, you have to prove that the creative work in question was copied, as opposed to the alleged infringer having come up with the offending ‘work’ independently and without “copying”.  In some cases, this might be relatively easy to prove: for example, if a large chunk of source code is simply copied from one program to another.  However, in some cases, where the copyright is said to subsist in the “intermodular relationships” or “ general flow” within computer program, for example, the matter can become somewhat more subjective.  Each case is different and must be judged on its merits, but the burden of proof that someone has copied your work can be onerous, depending on exactly what element of a software product is thought to have been copied.

‘Fair Dealing’

  • In the UK, there are certain categories of use of material protected by copyright that can act as a defence to an allegation of copyright infringement.  These categories of use are generally termed ‘fair dealing’ and include:
  • private and research study purposes;
  • performance, copies or lending for educational purposes;
  • criticism and news reporting;
  • incidental inclusion;
  • copies and lending by librarians;
  • format shifting or back up of a work you own for personal use;
  • caricature, parody or pastiche;
  • acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes;
  • recording of broadcasts for the purposes of listening to or viewing at a more convenient time;
  • producing a back-up copy for personal use of a computer program.

These ‘fair dealing’ exceptions may be particularly relevant to technology-related works such as software programs or databases. For example, producing a backup copy of a software program for personal use only would not be considered copyright infringement under a fair dealing exception; and, although fair dealing explicitly excludes decompilation or copying a software program during decompilation, the European Software Directive allows software licensees to use their copy of the software “to observe study or test the functioning of the program” in order to “determine the ideas and principles which underlie any element of the program.”

Therefore, users may freely study a program as it operates to determine its functions and its underlying concepts, even if the aim is to write a competing program. Nevertheless, actual copying of the source code is not tolerated since this is explicitly protected by copyright.

What territories are covered by copyright?

A qualifying creative ‘work’ created in the UK will automatically attract UK copyright.  However, the UK is also a member country of the so-called Berne Convention.  The Berne Convention (for the Protection of Literary and Artistic Works) was first adopted in 1886 as an agreement to honour the rights of all authors who are nationals of countries that are party to the convention and there are currently 179 member countries, and a full list can be obtained from  Most countries in the world are members and, of the few that are not, most have signed up to the TRIPS Agreement (at least as an observer) and/or the  Universal Copyright Convention.  In other words, most major markets of the world will honour the copyright of a UK national or resident (or indeed a national or resident of any of the other Berne Convention member states).

What does that mean in real terms?

It means that an author from any country that is a signatory of the convention is awarded the same rights in all other countries that are signatories to the Convention as they allow their own nationals.

For the period of copyright, the copyright owner has the following exclusive rights:

  • to authorise translations of the work;
    • to reproduce the work (except, in some cases, for limited private and educational use) without infringement;
    • to authorise public performance or broadcast, and the communication of broadcasts and public performances;
    • to authorise arrangements or other types of adaptation to the work;
    • recitation of the work (or of a translation of the work); and
    • to adapt or alter the work.

The author also has the following moral rights:

  • The author has the right to claim authorship
    • The right to object to any treatment of the work which would be ‘prejudicial to his honour or reputation’.

So, whilst each member country has its own national copyright laws which are, typically, more extensive than the provisions of the Berne Convention, all countries will at least provide the above rights to any copyright owner from any of the other member states.

How long does copyright last in the UK?

Although the Berne Convention states a copyright duration, this is in fact the minimum period of protection that must be provided by member states. The national laws of individual countries often provide longer copyright durations.  In the UK, copyright terms vary depending on the type of creative work, but copyright in a software program will last for 70 years from the end of the year of death of the author. 

Database Rights

Databases do not generally fall under copyright (unless there is the arrangement of the contents is very original), but have their own ‘database right’, if there has been a substantial investment in obtaining, verifying or presenting its contents.

Like copyright, database rights arise automatically, but only last for 15 years from creation and, if published during this time, then the term is 15 years from publication.

Database rights are infringed if a third party copies the database, or a substantial part of it, for commercial purposes, subject to the relevant ‘fair dealing’ exceptions.  For practical reasons, database rights would not be infringed if a person with the legal right to use part or all of a database performs steps necessary to use or access the contents of the database. Also, accessing a database for the purposes of private study or non-commercial research does not usually infringe database rights.

To summarise:

  • Copyright arises as soon as a qualifying creative work is ‘fixed’ in some way (depending on the nature of the work).
  • Copyright is owned by the ‘author’ unless they are employed to create the work or are operating under a contract that specifies otherwise.
  • Copyright can be used to prevent unauthorised copying of the creative work by a third party, subject to the ‘fair dealing’ exceptions.
  • Unlike patents, copyright does not protect against independent creation of similar works: if another software designer independently comes up with a computer program very like yours, copyright law is unlikely to be of any help in stopping them.

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