Copyright and Other IP Rights in Software
Copyright plays a central role in the protection of software. It protects the source code of the software as a literary work. Copyright enables the owner or rightsholder to prevent others from copying the work, from making derivative works based upon the work (in this context, new versions of the software), and from distributing copies of the work, whether for sale or for free (i.e. software piracy).
Copyright has another distinct advantage over other IP rights: it arises automatically and there are no registration requirements or fees to pay. On the other hand, this can make it difficult to prove infringement since the copyright owner will need to prove that the alleged infringer has directly copied their source code. Furthermore, only the code itself will be protected, not the underlying idea, technical aspects, or algorithms. Preventing copycat products (as opposed to direct copies) using copyright is therefore difficult.
Copyright can also protect the visual aspects of software, such as specific elements of the user interface and other graphics. Note, however, that as with the code, the underlying idea or the “look and feel” of the software cannot be protected in this way. Generic elements (particularly common in software resulting from certain developer tools) will also not be protected.
If the software includes audio and video elements, copyright will protect these too, whether as musical works, artistic works, photography, or films.
Databases within software may also be protected.
Copyright is versatile, free, and effective in protecting software. Ownership, however, can become complex if multiple developers are involved and particularly so if other software is incorporated within a new work.
The question of ownership also arises where developers are contractors, rather than employees. Under copyright law, if an employee creates a copyright work – the source code, for example – in the normal course of their employment, the copyright in that code will belong to their employer. If, on the other hand, a contractor creates the code, the default position in copyright law is that they will own it. Software development contracts, therefore, should be clear on the issue of copyright ownership.
While copyright prevents copying and the creation of derivative works, users do have limited legal rights to make copies, modifications, and to decompile software for limited purposes. Moreover, in some cases, it is not possible to contract out of such rights, so any term attempting to do so in a licence will be void. The rights are strictly limited, however, and if it is intended that users should have broader rights, this should be made clear to them.
Software patentability is a difficult and controversial topic. As noted above, copyright will not protect the underlying ideas and technical aspects of software. It may be assumed that patent protection will not be available for straightforward software. Indeed, Section 1(2) of the Patents Act 1977 specifically states that patents will not be granted for “a program for a computer” to the extent that the patent relates to the computer program “as such”.
To obtain a patent, firstly, an invention must satisfy two key criteria: novelty and the “inventive step” requirement. Most importantly, the software must solve a technical problem which goes beyond the mere ordinary operation of a computer program running on a computer system.
Software patents may be a practical option for protection in some more technical, scientific, or engineering fields; for example, a software program which controls a machine may be considered to solve a technical problem and may be patentable, but it must still satisfy the key criteria for patentability.
Historically, attempts to patent software have proven difficult and controversial. Working out exactly what gives a computer program the necessary technical character can be extremely difficult. Moreover, the process of obtaining a patent is both complex and expensive. For a typical software application, then, a patent is likely not the ideal choice.
Just as copyright protects certain visual elements of software, such as graphical user interfaces, so too can design rights – both registered and unregistered. As with copyright, however, a design will not protect the technical aspects of software.
A trade mark will not protect software in itself, but it can be used to protect a part of the overall package, specifically the name, brand, or logo. Registered trade marks can be used, or protection of an unregistered trade mark can be found under the common law action of passing off.
Other Forms of Protection
Intellectual property, and particularly copyright, offers substantial protection for software, but it is far from exhaustive. For one thing, it is all very well telling users that they are not permitted to copy and distribute the software to the public, but some still will.
Technical measures can be implemented. Commonly known as Digital Rights Management or “DRM”, such measures can help to prevent copying and modification on a technical level. Encryption may also help to protect underlying code.
Contractual methods can also be of assistance, particularly in a B2B context. Confidentiality provisions may, for example, help to protect those underlying aspects of software that IP rights do not. Additional limitations which either underpin or go beyond the standard protections offered by copyright and other rights can also be helpful, but it is important to keep in mind that certain rights (as noted above) cannot be limited and that any term attempting to do so will have no legal effect.