Intellectual Property

1. INTELLECTUAL
PROPERTY
COPYRIGHT
PROTECTION

2. COPYRIGHT PROTECTION
This Chapter is based on Part 3 and Chapter 16 of IT LAW by Ian J Lloyd.
Additions have been made to flesh out the Irish law sections.

3. COPYRIGHT PROTECTION
Only a small proportion of computer programs will display the necessary
degree of novelty and inventiveness to qualify for a patent.
Virtually every programme will obtain a measure of protection under
copyright law.
It is difficult to open a newspaper or view a new website without seeing
reports of Internet piracy and legal attempts to limit its scope.

4. COPYRIGHT BASICS
The owner of the copyright in a work posses the right to copy and, by
inference, the right to prevent others from copying.
Until the invention of the printing press by Gutenberg the issue of copying
was of little importance.
The copyright system has changed over the centuries as recording
technology has changed. The Copyright Act of 1956 gave protection to TV
and Radio Broadcasts. The Copyright (Computer Software) Act of 1985 gave
a form of protection to software.
The 2004 Directive on the Enforcement of IP rights is the latest EU
legislation in this area.

5. OBTAINING COPYRIGHT
There is no procedural formalities.
Protection begins at the moment that a work is recorded in some material
form.
Copyright last during the lifetime of the author and sometimes up to 70 years
after the authors death.
Civil and criminal penalties may be imposed upon a party who reproduce all
or a substantive part of the work.

6. COPYRIGHT IN IRELAND
In Ireland, copyright law is contained in the Copyright & Related Rights
Act, 2000. Copyright protects:-
original literary, dramatic, musical and artistic works (traditionally called the
“classical” copyrights);
film, sound recordings, broadcasts and the typographical arrangement of
published editions (often called “related rights”, because they involve the
exploitation of “classical” works);
computer software and non-original databases (despite their modest
credentials as “creative” works) and performances.

7. REQUIREMENT OF
ORIGINALITY
The most boring and unoriginal pieces of work are entitled to benefit from
copyright as much as the top selling novel of the year.
A computer programme shall be protected if it is the authors own intellectual
creation. No other criteria shall be applied to determine its eligibility for
protection.

8. EMPLOYEE CREATED WORKS
The exception to the principle that the author is the first owner of the
copyright in a work applies where the work is created in the course of the
authors employment.
In this event the copyright will rest with the employer.

9. COMPUTER GENERATED
WORKS
In most instances using a piece of software to assist you to generate a book
or a video will not effect the copyright. The software is only a tool assisting
the human.
In the UK the Copyright, Designs and Patents Act 1988 contains a provision
related to computer generated work.
In the case of literary, dramatic, music or artistic work which is computer
generated by the computer such that there is no human author of the work
then this will effect the copyright.
Few, if any, works will be created by a computer without human
involvement. It is difficult to think of situations where the computer will act
entirely on its own initiative.

10. Crash course on Copyright
https://www.youtube.com/watch?v=Tamoj84j64I

11. PRIVATE COPYING
Many people will own multiple devices capable of using copyright material such as,
laptops, phones, TVs, kindles, etc.
If a user has lawfully acquired the material, can they copy this onto multiple
devices for their own personal use?
26 counties in the EU allow for the private copying of files. Ireland is not one of
them.
While Ireland does not have a private copying exception, it has the option to
introduce such an exception in the future and this decision would impact on any
legislative approach adopted in Ireland.
For each country where the private copying is allowed a levy applies to recording
equipment, blank media, which is paid to the owners of the copyright.
The private copy levy has repeatedly been recognized as legitimate both in
principle and in practice, in particular by the Court of Justice of the European Union
on 11 July 2013.

12. SOFTWARE COPYRIGHT
Software can be very expensive to develop but once developed it can be
reproduced quickly and at a lower cost.
In the course of developing the software detailed design specifications may
be written down and these would have copyright protection.
There will also be cases whereby two pieces of software will have the same
“look and feel” but the implemented code may be different.
If two pieces of software look the same but have been implemented
differently is this a copyright infringement?

13. SOFTWARE PIRACY
According to Norton there are 5 types of Software piracy.
https://www.nortonlifelock.com/us/en/legal/anti-piracy/types-piracy/

14. SOFTWARE PIRACY
The Business Software Alliance produces statistics on how much software is
pirated in countries each year.
What do you think the piracy rate of software in Ireland is as of 2017 as a %.
What countries have the lowest software piracy rate in the world?
What countries have the highest rates of piracy?
https://gss.bsa.org/

15. REPORTING SOFTWARE
PIRACY IN IRELAND
https://www.irishtimes.com/business/six-irish-firms-face-software-piracy-
claims-1.320972

16. FAIR DEALING
At one point the UK publishing industry suggested that copying up to 10 per
cent of a book might be regarded as fair dealing.
Fair dealing in University in Ireland.
https://libguides.ul.ie/c.php?g=510928&p=3492586

17. SOFTWARE USAGE
When you run a program on a computer what happens?
The program gets copied from the hard disk to RAM. The act of running the
software is capable of breaching copyright.
The response of the sellers of the software was to seek to incorporate the
terms of the licence into the contract with the end user.
Article 4 of the EU Legal Protection of Computer Programmes states that:
“Permanent or temporary reproduction of a computer program by any means
and in any form, in part or in whole, insofar as loading, displaying, running,
transmission or storage of the computer program necessitates such
reproduction, such acts shall be seen to be authorized by the rights holder.”

18. ERROR CORRECTION
EU Legal Protection of Computer Programmes states that an authorised
user may copy or adapt a program for the purpose of correcting errors in it.
This provision might appear to give a user permission to copy a program in
the quest to discover errors.

19. BACK UP COPIES
Contents of computers can be accidentally corrupted or erased. It would be
reasonable for a second or backup copy of a program to be kept. This is
provided for in the EU Legal Protection of Computer Programmes Directive.

20. CACHING
An ISP will maintain their own copy on their own machines so as to not
have to request the same webpage from the webserver of a popular website.
Article 5 of the EU Directive permits temporary acts of reproduction. The
intent behind this provision is that this is “an integral and essential part of a
technology process. “
The inclusion of the phrase “integral and essential “ may rob the provision of
much of its meaning as although caching is advantageous it cannot be
considered essential. The Internet would function without it although its
speed may be slowed.

21. REVERSE ENGINEERING AND
DECOMPILATION
This involved the purchase and dismantling of the products of a competitor.
The technique seeks to reproduce the original source code.
It is arguable that a claim of breach of copyright will succeed even if the
second works code bear little resemblance to the original code. If the second
programme replicates the “look and feel” of the original then there may be a
case to answer.
In these “look and feel” cases there would not have to be any reverse
engineering, the design of the product has been reproduced and a copyright
infringement case can be brought.

22. REVERSE ENGINEERING AND
DECOMPILATION
If we wish to create a new word processing application. The competitors
who wish to create the word processing application can legitimately use both
Microsoft Word and Apache Writer and select the features that they will
replicate in their own product.
Subject to strict conditions , a user will also be given the right to decompile a
programs object code so as to produce a further program that is
interoperable with the copyrights owner. This right cannot be excluded but
will apply only where the information required is not made “readily available”
by the copyright owner.
An anti trust lawsuit was made against Microsoft by the EU Commission
against Microsoft over this issue of “readily available”. The term “readily
available” does not require information to be provided free of charge but the
use of excessive charges would be against the spirit of the term.

23. WHAT CAN BE PROTECTED BY
COPYRIGHT
EC Directive on the Legal Protection of Computer Programs “ideas and
principles, which underline any element of a computer program are not
protected by copyright”
Ideas are too intangible to be protected.
From a legal perspective there is no doubt that the complete reproduction of
software packages will constitute infringement of copyright. In other cases,
elements of earlier work may be reproduced.

24. LOOK AND FEEL PROTECTION
In the 1970s a number of cases of this nature reached the courts in the US
and UK.
One category of cases involves where persons were employed to produce a
computer program for one company. Once this software was produced the
persons would go and work for a different company producing a similar type
of software (it could be implemented in a different programming language).
The latest package may also include extra features.
A second category of cases involve the parties having the opportunity to see
a copy of the original program in operation and implement aspects of this
program for their own uses.

25. RICHARDSON VS FLANDERS
At issue here was a computer program to be used by pharmacists. When the
computer was attached to a printer the program allowed for the printing dosage
instructions along with the medication. The program also performed a drug stock
taking function and was run on the BBC microcomputer.
The program was marketed by Richardson who had completed a significant
amount of work on the program. Flanders was employed by Richardson to work on
the project. It was accepted that the copyright belonged to Richardson.
The program achieved considerable success. Flanders resigned his position but
still worked on a contract basis on projects for Richardson. With the advent of the
IBM PC one of Richardson’s customers expressed an interest in a similar program
to be produced for that system which could be sold in the Irish market. Richardson
was not interested in doing this work but suggested to Flanders that he develop the
system, he did and sold this in Ireland. Flanders then modified the program slightly
and sold it in the UK market.
At this stage Richardson initiated legal proceedings against Flanders sighting
copyright infringement. Do you think that Richardson’s copyright has been
infringed?

26. RICHARDSON VS FLANDERS
The judge considering the case found 17 areas of similarity in the interface
(the source code was not judged) and investigated each of these.
Infringement was established in only 3 of these 17 cases.
Copyright infringement was established but heavily qualified.
The judge stated “a fairly minor infringement in a few limited respects and
certainly not …. slavish copying”
The judge also made reference to the idea not being very novel. The effect
of the judgement is similar to recognising that for functional works, external
forces may well be the cause of similarity, thereby excusing conduct that
might otherwise appear to constitute a breach of copyright.

27. RICHARDSON VS FLANDERS
DECISION
Held: The court rejected any contention of deliberate copying: ‘In short, I do not
accept the evidence I have discussed under heads (i) and (ii) in this section of my
judgment as establishing deliberate copying of the [earlier] program by Mr Flanders. But
the fact remains that he had, as I have said, an intimate knowledge of the [earlier] program
at all levels of abstraction and it is possible that he has, unconsciously or unintentionally or
in some other way which he did not consider to be objectionable, made use of that
knowledge in a way that amounts to copying in the context of breach of copyright. It is that
possibility that I must evaluate in appraising the particular similarities that I have identified.’
17 similarities were found: ‘I find it impossible not to conclude that the line editor in the
[later] program has substantially been copied from the line editor in the [earlier]
program. If all that had been copied was the concept of a line editor that would not have
mattered for present purposes, being a mere adoption of an idea. But similarities such as
the obscuration of the text which is to be amended, the message ‘Insert to edit’ in one
case and ‘Copy to edit’ in the other and, above all, the idiosyncratic restoration of text
which is merely deleted and not replaced demonstrate that there has been copying of
expression as well as idea.’ The copying of source code is analogous to taking the plot
of a book. An author who takes the plot of another work and copies nothing else will still
infringe copyright if a substantial part of the earlier author’s work is represented by that
plot, and the same goes for computer programs.

28. ARMS LENGTH
REPRODUCTION
This case is Navitaire vs Easyjet.
Navitaire had developed a computerised reservation system for Easyjet
called OpenRes. Easyjet had licenced the program but after a period of time
decided to develop its own system using an American company to develop it.
In this case the defendants had no access to the code of the system but
they had used the interface of the system.
Easyjet wanted their own system and they were very open with the fact that
they wanted it to be indistinguishable from the OpenRes system and was to
be called eRes.
A court case was initiated by Navitaire.
Do you think that Navitaire’s copyright has been infringed?

29. NAVITAIRE VS EASYJET.
In the final analysis small infringements were established but most of the
judgement was in the favour of Easyjet.
To support the judges decision Article 1 of the European Software Protection
Directive was used. It states;
“protection in accordance of the directive shall apply to the expression in any form
of a computer program. Ideas and principles which underline any element of a
computer program, including those which underline its interface, are not protected
by copyright”
The judge stated the “Navitaire’s computer program invites input in a manner
excluded from copyright protection, outputs its results in a manner that is excluded
from copyright protection… In my judgement, this claim for non-textual copying
should fail”
No appeal was made in this case and the parties reached an out of court
settlement.

30. ACTIVITY
Read the following article entitled “What is Article 13? The EU's divisive new
copyright plan explained.” and explain what the new European directive aims
to implement. Articles 11 and 13 are particularly controversial.
https://www.wired.co.uk/article/what-is-article-13-article-11-european-
directive-on-copyright-explained-meme-ban
https://www.euractiv.com/section/digital/news/one-year-of-eu-copyright-
reform-is-the-internet-still-working/
Find a video that explains this Directive and we will play it in the next class.

31. CONCLUSIONS
Developments in the field of software copyrighting provide a mirror image to
the situation of software patents.
For copyright recent judicial decisions have significantly limited the scope of
protection except in the cases of direct copying.
Copyright now does not extend to cover the “look and feel” of a program.