chapter  11
44 Pages

Intellectual property rights in software

Choice of intellectual property protection Copyright In principle, copyright appears to be a suitable method of protection given that a program can be expressed in written form and copyright protects the form or expression of an idea rather than the idea itself. This should have the advantage of protecting the form of the program rather than

program performing the same function without infringing copyright in the fi rst program. In addition, copyright protection arises automatically on creation of the work and generally requires no fundamental creativity or originality as long as it is the author’s own individual handiwork – albeit that the need for some minimal creativity/originality can create diffi culties in respect of some utilitarian or functional works. 3 When a work is subject to copyright protection, the law gives a copyright owner certain rights to control the dissemination and use of the material that is subject to the copyright, including, of course, the rights to allow or prevent copying. This is intended to be balanced by certain rights for users that allow a certain amount of copying for certain specifi ed reasons and under certain specifi ed conditions, referred to as ‘fair dealing’ in UK law and ‘fair use’ in the USA. Copyright is long-lasting. The term of copyright protection under Art 7 of the Berne Convention is the life of the author plus 50 years, and this has been extended in many jurisdictions. 4 Computer programs can become obsolete in very short times and so could equally well be protected by a shorter term, but neither is the longer term available under current copyright law particularly detrimental. Overall, therefore, copyright could clearly be a suitable method of protection as long as any issues arising out of the functional or utilitarian nature of computer programs can be accommodated.