Software copyright is the application ofcopyright inlaw tomachine-readablesoftware. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular tosoftware.
Software copyright is used bysoftware developers andproprietary software companies to prevent theunauthorized copying of their software.Free andopen source licenses also rely on copyright law to enforce their terms. For instance,copyleft licenses impose a duty onlicensees to share their modifications to the work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in thepublic domain.
InCanada, software is protected as aliterary work under theCopyright Act of Canada. Copyright is acquired automatically when anoriginal work is generated; the creator is not required to register or mark the work with thecopyright symbol in order to be protected.[1] The rights holder is granted: the exclusiveright of reproduction, the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms ofFair Dealing; these exempt users from copyright liability covering usage and reproduction when performed forresearch, private study,education,parody orsatire.[2] Changes to the Copyright Act in regard to digital copyright were debated in the Canadian Parliament in 2008.Bill C-61 proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups,reverse engineering andsecurity testing.
Software copyright in China inChinese Law means that a creator or otherObligee enjoysexclusive rights of thesoftware under relatedcopyright law.
It is acivil right and has the common features of all other civil rights. It is an exception inintellectual property rights because it is owned withoutindividual confirmation. This is usually referred to as the principle of “automatic protection”. The owner enjoys the right ofpublication, authorship, consent to use as well as the right of being paid.A 1979East German court ruling found that software was "neither ascientific work nor a creative achievement" and ineligible for copyright protection, legalizing software copying in the country.[3]
Software can be copyrighted inIndia.[4] Copyright in software, in the absence of any agreement to the contrary, vests in theauthor of the software, even for commissioned works. Copyright can be assigned or licensed through a written document, but under theIndian Copyright Act, in case the period of assignment is not specified, the period is deemed to be 5 years from the date of assignment (section 19(5) of the Copyright Act). In a recent judgement in the case ofPine Labs Private Limited v.Gemalto Terminals India Private Limited[5] theDelhi High Court has laid down that the copyright belongs to the author (in this case, Pine Labs) and as the period of assignment was not specified in the document of assignment (themaster service agreement), the copyright in the software reverted to Pine Labs after 5 years. SeeAssignment of Copyright in Software.
Under the provision ofCopyright Ordinance 1962, works which fall into any of the following categories:literary, musical, orartistic are protected by Copyright law. The definition of literary work was amended by Copyright Amendment 1992 to include computer software. Section 2(p) of the ordinance defines acomputer program as "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information".[6] In event of infringement, civil and/or criminal proceedings can be carried out. According to Chapter XIV of Copyright Ordinance, a person can face a prison of up to 3 years and/or a penalty of up to one hundred thousandrupees if he is found guilty ofrenting computer software without permission of the owner.[7] According to a study ofBusiness Software Alliance, 84% of software in Pakistan is being used in violation of theCopyright law of Pakistan.[8]
Copyright protection attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others. Copyright protects:
+ compilations and derivative works – 17 USC § 103(a).
In the United States, computer programs are literary works, under the definition in the Copyright Act:
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
The legal definition of "literary work" extends beyond the common-sense meaning of the term (literature such asFor Whom the Bell Tolls) and includes any work expressed as a sequence of words, numbers, or symbols, particularly thesource orobject code of computer programs.[9]
There is a certain amount of work that goes into making copyright successful and just as with other works, copyright forcomputer programs prohibits not only literal copying, but also copying of "nonliteral elements", such as program'sstructure, sequence and organization. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves."[10] InComputer Associates vs Altai, theSecond Circuit proposed theAbstraction-Filtration-Comparison test for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purelyutilitarian and the public domain.
Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101.Circuits differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.[11]The set of operations available through the interface is not copyrightable in the United States underLotus v. Borland, but it can be protected with autility patent. The law is unclear as to whether transient copies – such as those cached when transmitting digital content, or temporary copies in a computer'sRAM – are “fixed” for the purposes of copyright law.[12] TheNinth Circuit has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.”[13] InApple v. Microsoft, the courts established that alook and feel copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.
Historically,computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object:object code was viewed as a utilitarian good produced fromsource code rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code.[14] This analogy caused the Copyright Office to issue copyright certificates under itsRule of Doubt.
In 1974, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's originalcreation, are proper subject matter of copyright."[15][14] In 1980, the United States Congress added the definition of "computer program" to17 U.S.C. § 101 and amended17 U.S.C. § 117 to allow the owner of the program to make another copy or adaptation for use on a computer.[16]
Thislegislation, plus court decisions such asApple v. Franklin in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via thedoctrine of first sale (seeStep-Saver Data Systems, Inc. v. Wyse Technology). Thesesoftware license agreements are often labeled as end-user license agreements (EULAs). Another impact of the decision was the rise of theshrink-wrapclosed source business model, where before asource code driven software distribution schema dominated.[15][17]
In 1998, The United States Congress passed theDigital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. In addition, theDMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."17 U.S.C. § 117
The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes.[18] Furthermore, "owners of copies" have the right to resell their copies, under thefirst sale doctrine and17 U.S.C. § 109.
These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold",[19] thus sidestepping17 U.S.C. § 117. American courts have taken varying approaches when confronted with thesesoftware license agreements. InMAI Systems Corp. v. Peak Computer, Inc.,Triad Systems Corp. v. Southeastern Express Co., andMicrosoft v Harmony,[20] various Federal courts held that "licensed, not sold" language in anEULA was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".[21] The Ninth Circuit took a similar view (in the specialized context of bankruptcy) inMicrosoft Corp. v. DAK Industries, Inc.[22]
By contrast, in theEuropean Union theEuropean Court of Justice held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion onfirst sale as ownership is transferred, and questions therefore the "licensed, not sold"EULAs in the EU.[23][24][25][26][27][28]
Fair use is a defense to an allegation ofcopyright infringement under section 107 of theCopyright Act of 1976. This section describes some of the uses of copyrighted software that courts have held to be fair.
InGaloob v. Nintendo, the9th Circuit held that modification of copyrighted software for personal use was fair. InSega v. Accolade, the 9th Circuit held that making copies in the course ofreverse engineering is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access".
TheSupreme Court ruled inGoogle LLC v. Oracle America, Inc. (2021) that the reuse ofapplication programming interfaces (APIs) including representativesource code can be transformative and fall within fair use, though did not rule if such APIs are copyrightable.[29]
Acopyleft is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.[30][31]
Computer programs and other types of software, including mobile apps, are protected as literary works for copyright purposes.[32] Copyright protection is formality-free in countries party to theBerne Convention, which means that protection does not depend on compliance with any formalities such as registration or deposit of copies.[33]
This inclusion of software in the wording of article 2 of Berne Convention is supported by theWIPO Copyright Treaty:[32]
"Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression."
— WIPO Copyright Treaty (WCT), Article 4.[34]
A patent is generally granted after completing an examination procedure by a government agency. Copyright protection of computer software is established in most countries and harmonized by international treaties to that effect.[33]
So ifopen source used to be the norm back in the 1960s and 70s, how did this _change_? Where didproprietary software come from, and when, and how? How didRichard Stallman's little utopia at theMIT AI lab crumble and force him out into the wilderness to try to rebuild it? Two things changed in the early 80s: the exponentially growing installed base of microcomputer hardware reached critical mass around 1980, and a legal decision altered copyright law to cover binaries in 1983.
I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. "In fact," he says, "it's never been completely resolved for software generally[...]"
A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.
Could this be the victory we need for a "gamer's bill of rights" ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their 'used' game.
(Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer)
