Intellectual Property Protection for Computer Software
From: Michael Current (aa700@cleveland.Freenet.Edu)
Date: 07/13/94-12:53:18 PM Z
From: aa700@cleveland.Freenet.Edu (Michael Current)
Subject: Intellectual Property Protection for Computer Software
Date: Wed Jul 13 12:53:18 1994
Intellectual Property Protection for Computer Software
As submitted to Atari Classics magazine
Atari Classics, February 1994, pp. 4-7
Copyright (c) 1993
by
Michael Current
Submitted to Padmini Srinivasan
for
Introduction to Information Science
November 30, 1993
The legalities involved in the field of computer software are many
and varied, and they are often poorly understood. This document attempts
to clarify the roles of the laws of intellectual property protection for
computer software, with particular emphasis on copyright. While
copyright protection is the central topic here, other areas relevant to
computer software include patent protection, trade secret protection, and
trademark protection. Each of these are also briefly discussed. Once
adequate background in copyright law has been provided, popular terms such
as "commercial software," "shareware," "freeware," and "public domain"
software are defined and explored in their legal meanings, and a few
ethical questions are posed as well.
Basic Intellectual Property Rights
Ideas, symbols, names and forms of expression may all be considered
examples of intellectual property. If the author or inventor chooses to
allow the use of his/her property by others, the intellectual property
laws come into play. These laws attempt to strike a reasonable balance
between the ability of authors and inventors to control the use of their
property, and the rights of the public at large to the access of new ideas
and forms of expression.
Laws of Intellectual Property Protection
The United States Congress offers creators of computer software three
direct types of intellectual property protection: patent protection,
copyright protection and trade secret protection. Many products make use
of two or even all three of these techniques. [9,p.2]
Additionally, trademark protection may be employed to protect a
product name, symbol, device, or a combination of these, from use or
misuse by others. Trademark registrations cover an initial five-year
period, then renewable twenty-year periods so long as the trademark
remains in use.
Patent Protection
A patent protects ideas and algorithms in a product rather than the
particular set of code used to implement them. Also, by providing 17
years of exclusivity in the marketplace, patents usually are the most
powerful and broad form of protection available to the developer, as long
as the invention in question is "nonobvious" in nature. Two types of
patents are utility patents and design patents. Examples of utility
patents include inventive functions, methods, systems, and algorithms,
including applied mathematical formulas. Design patents, while not
protecting the functional aspects of a screen display or a portion of
computer code, protect the graphical or ornamental aspects of a screen
display. Over 10,000 United States patents had been granted on software
invention by 1989, yet patents for computer software remain not widely
utilized. [9,p.3] This can be attributed to the unofficial opposition to
the practice by the Patent and Trademark Office, the very high relative
cost of obtaining a patent, and the several-year application process
necessary to obtain a patent. Also, the large amount of disclosure of
product information required can jeopardize the possibility of trade
secret protection. [6,p.83]
Copyright Protection
The United States recognizes the following seven rights exclusively
to a copyright holder:
1) reproductive right: to reproduce the work in copies
2) adaptive right: to produce derivative works based on the copyrighted work
3) distribution right: to distribute copies of the work
4) performance right: to perform the copyrighted work publicly
5) display right: to display the copyrighted work publicly
6) attribution right (or, the paternity right): to claim authorship of
the work and to prevent the use of his/her name as the author of a work
he/she did not create
7) integrity right: to prevent the use of his/her name as the author of
a distorted version of the work, to prevent intentional distortion of the
work, and to prevent destruction of the work [4,part2]
Copyright applies to virtually all computer software. It protects
the form of expression, both source and object code, from duplication or
close imitation. Beyond the program code itself, copyright may be applied
to the program's structure, sequence and organization, and some elements
of the user-interface (the "look and feel"). The copyright holder may
prevent others from modifying or adapting the product for distribution in
its modified form. Protection under copyright is easily obtained and
enforced, but cannot protect underlying functions, methods, ideas, systems
or algorithms, and it cannot protect against independent creation of the
same or a similar work.
Trade Secret Protection
Information and ideas must be of value, not readily known to others,
be providing a demonstrable competitive advantage, and be subject to
reasonable efforts to maintain their secrecy to qualify for trade secret
protection. Code, ideas, and concepts may be treated as trade secrets so
long as they are not obtainable through other products by lawful means,
including reverse engineering. The technology is not protected if it is
produced independently by others. The idea may even be patented by others
if they develop it independently. A trade secret is forever lost when the
secret becomes general knowledge. Usually trade secret protection is used
in combination with patent and/or copyright protection for software
products to provide more complete protection.
Copyright in Detail
The copyright laws are found in Title 17 of the United States Code,
which is based on the Constitutional power of Congress "To promote the
Progress of Science and useful Arts, by securing for limited Times to
Authors...the exclusive Right to their...Writings..." [4,part2] With this
basis, copyright law does not protect ideas, only ways in which they are
expressed. The 1909 Copyright Act was inadequate for addressing computer
software, yet the Copyright Office chose to accept computer programs as
literary works beginning in 1964. [6,p.35] The present Copyright Act was
passed in 1976 and became effective January 1, 1978. The question of
copyrightability of software programs was temporarily put off, to be
settled by the National Commission on New Technological Uses of
Copyrighted Works. This finally led to the Computer Software Copyright
Act of 1980, amending the 1976 law so that it explicitly applies to
computer programs. [6,p.35]
Copyright Is Automatic
If a software program was originally created by the author and not
copied from someone else, and it is stable enough to be stored in any way,
then it has been automatically protected by copyright law since the moment
of its creation. Protection under copyright extends for the life of the
author and, except for rights six and seven above, 50 years beyond the
author's death. In the case of "works made for hire," (discussed below)
protection spans for 75 years from the year of first publication or for
100 years from the year of creation, whichever ends first. Although
copyright protection is automatic, to protect against "innocent
infringement" a proper copyright notice (described below) should be used,
and to challenge a copyright infringer in court also requires registration
of the program with the Copyright Office.
If It's Not Copyrighted, It's Public Domain
As of March 1, 1988, the effective date of the Berne Convention
Implementation Act, a work does not require a notice of copyright to be
protected under copyright law. However, if the copyright has expired, if
the software was published without copyright notice before 1988, or if the
copyright is expressly abandonded by the holder, then a computer program
becomes part of the public domain. Once in the public domain, there are
no legal rights associated with that software. It may be freely copied,
enhanced and sold, without any kind of compensation to the original
author.
Copyright Notice
A legally recognized copyright notice consists of the following:
-- a copyright symbol
-- the year of first publication
-- the name of the copyright owner, or company in the case of works made
for hire Under the Copyright Act of 1976 the copyright symbol was either "
," "Copyright," or "Copyr.," but "(c)" was not legally sufficient.
However, no such copyright notice has been required since the United
States joined the Berne Convention in 1988. On the other hand, to be
protected under the Universal Copyright Convention (U.C.C.) treaty, which
includes some countries that have not signed the Berne Convention, a
copyright notice as described above is still required. Note that the
U.C.C. only recognizes " " as the proper copyright symbol. Also seen in
the field is the phrase "All rights reserved." This phrase was required
under the Buenos Aires Convention, but all members of that treaty are now
signatories of either the U.C.C. or the Berne Convention, so "All rights
reserved" no longer has any meaningful purpose.
Copyright Registration
A copyright owner may register a copyrighted work at any time during
the duration of that work's copyright protection. This must be done in
order to be able to bring suit against an infringer of the copyright.
However, monetary compensation is largely only available if the work was
registered before the infringement took place. [6,pp.51-2] Registration of
copyright involves sending the required deposit material, consisting of
source and/or object code, plus a $10 filing fee to the Copyright Office
of the Library of Congress. Because materials that are deposited are
available for public inspection, a variety of special rules may be invoked
to protect possible trade secrets contained in the machine code. [6,p.53]
Co-ownership, and Works Made for Hire
Copyright ownership by default rests with the original author of a
software. If there are co-authors, then each author is a co-owner of
copyright for the work. Co-ownership of copyright, as in other material
items, can be very inconvenient and produce legal headaches if
disagreements arise.
A work made for hire, on the other hand, is either
-- a work created by an employee being paid for the creation of that work, or
-- a work commissioned outside the company as part of a set of related
products being collectively developed. The first case always results in
the copyright ownership resting with the employer, while in the second
case ownership remains with the author unless it is expressly agreed in
writing that ownership is transferred to the employer. Such agreements
are the rule rather than the exception. [4,part3]
Piracy is Copyright Infringement
Copyright infringement occurs whenever one of the seven rights
exclusive to the copyright holder are violated, and is popularly termed
"piracy." If the violation occurs within the scope of employment, then
the employer is also liable for the act, even if unaware of the employee's
activities. Any person who induces or causes another to commit copyright
infringement is liable as well.
When considering whether piracy has taken place, the concept of "fair
use" must be understood. That is, the law expressly allows for any
copying steps necessary for legitimate use of the software, such as
copying the program from disk to RAM. The second part of "fair use" is
the right to make a personal copy of the software for archival purposes,
so long as all copies are either transferred with the original upon change
of ownership, or are destroyed at such a time.
However, it is important to note that "fair use" only applies to
copies of software that have been purchased. Much of today's software is
not purchased by users but rather licensed to users. [9,p.46] In this case
the license agreement will expressly state what rights are granted to the
licensee (user), while all other rights remain with the copyright owner.
The Popular Terminology
Lowest on the hierarchy is public domain software, software that may
be freely copied, modified, and/or sold for profit, without notification
or compensation of the author. It has been shown above that software
placed into the public domain is the exception rather than the rule. The
only way for a program to enter the public domain is for the copyright
holder to unambiguously declare it so, thereby forfeiting all intellectual
rights associated with the software.
Often confused with public domain software is freeware. Freeware is
software that may be freely distributed but not modified in any way. The
programmer wishes his/her creation to see maximum distribution at no cost
to its users, but he/she also wishes to retain full intellectual property
rights for the program. What is happening here is a mandatory license
agreement between the copyright owner and the user. The programmer
retains full copyrights, except for those rights expressly granted to
licensees, those persons who obtain the software.
Next up the line is shareware. In fact, the only difference between
shareware and freeware is that among the conditions stated in the
programmer-written user license agreement is the demand that a certain
amount of money be sent to the author. In markets too small to support
more than a few commercial software developers, this can be an effective
way to market software for a small profit.
At the top of the hierarchy is commercial software. This bracket
includes all software that must be paid-for by the user at the time of
acquisition. As briefly discussed above, commercial software may be
further divided into software sold to users and software licensed to users.
A user who has purchased a copy of commercial software has not purchased
the copyrights in any way, and may not violate any of the seven rights
which remain exclusively held by the copyright owner. Licensed software,
on the other hand, is software where only a few rights are explicitly
granted by the copyright owner to the user. The user has purchased
nothing but the license agreement, and is usually required to return the
copy of the software to the owner when the terms of the agreement are
violated. Such agreements are usually imposed by the developer to further
limit the rights of the user beyond those granted by copyright law. A
Different Grouping
Thus, in addition to categorizing computer software by the amount of
payment required, it may also be useful to group all copyrighted software
into these two categories: 1) Purchasable commercial software, where
ownership of the copy, but not the copyright, is transferred, and 2)
Licensed software, which includes freeware, shareware, and the rest of
commercial software, where ownership remains with the copyright holder.
Users of purchased commercial software must abide by copyright law, while
users of licensed software must abide by both copyright law and the license
agreements beyond copyright law.
Unanswered Questions, Speculative Answers
A variety of questions remain unanswered by this research. Clearly
no copyrights have expired for computer software created since 1978, but
what if a commercial program is no longer commercially available? What if
the commercial developer has long since disappeared into bankruptcy?
Agreements can be made between the programmer and employer in this case so
that copyrights revert to the author, but this does not seem to be the
default course of events. Is it legal to obtain pirated copies of
commercial software if the developer no longer exists? What if the vendor
exists but has long since lost interest in the product? Legalities aside,
does one have a right to pirated software that is unavailable
legitimately? These are traditionally very controversial questions, but
unfortunately they are questions not answered here.
Bibliography
[1] Bertolucci, J. "Software Licensing: Still a Jungle." PC World,
September 1992, p. 89.
[2] Brodie, Bob (Atari Director of Communications). An e-mail message
dated November 19, 1993.
[3] Ibid. An e-mail message dated November 20, 1993.
[4] Carrol, Terry. "Frequently Asked Questions About Copyright (V.
1.1.1). Posted to the Usenet group misc.legal.computing on October 27,
1993.
[5] Chris (Sierra On-Line Tech Support). An e-mail message dated
November 19, 1993.
[6] Cooper, Frederick L. Law and the Software Marketer. Englewood
Cliffs, N.J.: Prentice Hall, 1988.
[7] Greguras, Fred and Gary Reback and Joel Riff. "Software's Legal
Protection Around the World." Information Strategy, Fall 1990, p. 23.
[8] Hamilton, D. P. "Can Electronic Property Be Protected?" Science,
July 5, 1991, p. 23.
[9] A Legal Guide for the Software Developer. Minnesota Department of
Trade and Economic Development, 1989.
[10] Levy, S. "The Rap on Software Piracy." MacWorld, January 1993, p. 57.
[11] McGrath, William T. "Who Owns the Copyrights?" Byte, April 1990, pp.
269-71.
[12] Miller, Joel. "Software Copyrights: Searching for the Golden
Nugget." IEEE Spectrum, January 1993, p. 20.
[13] Morin, Richard. "The Meaning of Freeware." UNIX Review, December
1993, pp. 101-102.
[14] Simon, David F. Computer Law Handbook: Software Protection,
Contracts, Litigation, Forms. Philadelphia: American Law
Institute-American Bar Association, 1990.
[15] Volk, William (Activision VP Technology). An e-mail message dated
November 18, 1993.
[16] Weber, Robert. "Copyright in the Electronic Age." Publishers Weekly,
March 22, 1991, pp. 52-3.
[17] Webster, George D. "Hard Rules for Software Copyright."
Association Management, August 1991, pp. 108-9.
[18] Weisband, Suzanne P., and Seymour E. Goodman. "International
Software Piracy." Computer, November 1992, pp. 87-90.
--
Michael Current, Keeper of the 8-Bit Atari FAQ & Vendor/Developer Lists
Cleveland Free-Net Atari SIGOp: aa700 / mailto::mcurrent@carleton.edu
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