Abstract
Although copyright policy has been governed by the need to protect the interests of authors, it also attempts to protect the society’s interests. Building upon the foundation provided by the international copyright treaties, which specify minimum standards of legal protection, the copyright system has evolved from being a rather vague area of the law into a system of central importance. Technological advances do have a huge impact upon the operation and effectiveness of copyright law. These advances spawn new industries and new methods for reproduction and dissemination of works of authorship, which will give new opportunities for authors. In the past seven decades, we have witnessed rapid developments in the field of communications and information technology which have exponentially expanded and extended the ability of human beings to communicate. The digital computer will stand out as one of the most important contributions to the great communication and information revolution which happened during the period. Undoubtedly, the scope of copyright protection for computer software is a major source of worry for both proprietary and open source software developers. This is because the scope of the program will ultimately determine what aspects of a program are forming part of the protectable core as copyrightable expression, and what features will be available for a future developer to copy. The analysis of the scope of copyright protection should be determined by delicately balancing the author’s creative rights with the public interest in access. This chapter deals with the legal issues involved in protection of software by providing a comprehensive coverage of the important international developments.
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Notes
- 1.
Litman 1990.
- 2.
In many cases the US Supreme Court has relied upon incentive justification for copyright. See, e.g., Sony Corp. v. Universal City Studios, 464 U.S. 417, p. 429 (1984), this essentially meant that copyright was intended to motivate the creative activity of authors and inventors by the provision of a special reward.
- 3.
This argument can be reflected in Mazer v. Stein, 347 U.S. 201, p. 219 (1954), sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.
- 4.
Sterk 1996.
- 5.
Ibid.
- 6.
Folsom v. Marsh, 9 F. Cas. 342, 344 (1841).
- 7.
Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Right (USPTO, 1995) 13.
- 8.
See generally Curran and Curnow 1984.
- 9.
See Report titled National Commission on New Technology Uses of Copyrighted Works (hereinafter CONTU Report) 22.
- 10.
Cook 1984.
- 11.
Toong and Gupta 1982.
- 12.
Xuan-Thao N. Nguyen et al. 2006.
- 13.
Strasser 2001.
- 14.
In other words the programmers and computers never speak the same language.
- 15.
Nguyen supra note 12 at 504.
- 16.
Azzi 2010.
- 17.
McJohn 2000.
- 18.
Lerner and Tirole 2002.
- 19.
Ibid.
- 20.
Ibid. at 201.
- 21.
CONTU Report supra note 9.
- 22.
Copyright Act of 1976, 17 U.S.C. § 102(b) (1982).
- 23.
CONTU Report supra note 9 at 22–23.
- 24.
Arrow 1962.
- 25.
Samuelson 1954.
- 26.
CONTU Report supra note 9 at 9–12.
- 27.
Ibid. at 19–23.
- 28.
Section 102(b) of Copyright Act.
- 29.
The misappropriation doctrine in US is a branch of unfair competition law which can be used to protect some aspects of intellectual work embodied in program code. In the famous case of International News Service v. Associated Press, 248 U.S. 215 (1918) the Supreme Court held that the gatherer of valuable information has a limited right to prevent competitors from copying such information.
- 30.
Davidson 1983.
- 31.
Q-Co Indus. v. Hoffman, 625 F. Supp. 608, 617 (S.D.N.Y. 1985).
- 32.
Gilburne and Johnston 1982;
- 33.
Goldstein 1986, ALSO, Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1251 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
- 34.
714 F.2d 1240 (3d Cir. 1983).
- 35.
Ibid. at 1253.
- 36.
101 U.S. 99 (1880).
- 37.
The book’s title was Selden’s Condensed Ledger or Book-keeping Simplified.
- 38.
Supra note 36 at 101.
- 39.
Ibid.
- 40.
Ibid.
- 41.
The court gave an example that the copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires.
- 42.
Supra note 36 at 107.
- 43.
45 F.2d 119 (1930).
- 44.
Ibid.
- 45.
Ibid.
- 46.
Whelan Assocs. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (1986).
- 47.
Ibid. p. 1225.
- 48.
Ibid.
- 49.
Ibid. at 1225–1226.
- 50.
Ibid. at 1226.
- 51.
Ibid. at 1227.
- 52.
Whelan Associates v. Jaslow Dental Laboratory, 609 F. Supp. 1307, 1321 (1985).
- 53.
Ibid. at 1322.
- 54.
Whelan supra note 46 at 1230, Program’s efficiency mostly depended upon the arrangements of its modules and subroutines; although two programs could produce the same result, one might be more efficient because of different internal arrangements of modules and subroutines.
- 55.
Ibid.
- 56.
Ibid.
- 57.
Ibid. at 1234.
- 58.
Ibid. at 1236.
- 59.
982 F.2d 693 (1992).
- 60.
Ibid. at 698–699.
- 61.
The defendant’s program was named as Oscar.
- 62.
Appellant program was names as Adapter.
- 63.
Whelan supra note 46.
- 64.
Computer Associates supra note 59.
- 65.
Ibid. at 721.
- 66.
Ibid. at 706, finally the Court held that there was no infringement.
- 67.
Computer Associates supra note 59.
- 68.
Stern Elecs Inc v Kaufman 669 F. 2d 852, 855 (2d Cir.1982).
- 69.
See Shneiderman 1987.
- 70.
Menell 1989.
- 71.
Ibid. at 1055.
- 72.
648 F. Supp. 1127 (N.D. Cal. 1986).
- 73.
Ibid. at 1133.
- 74.
706 F. Supp. 984, 992 (D. Conn. 1989).
- 75.
Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994).
- 76.
Ibid. at 1441–1442.
- 77.
Apple Computer, Inc. v. Microsoft Corp., 717 F. Supp. 1428, 1433–1435 (N.D. Cal. 1991).
- 78.
Apple supra note 75 at 1442.
- 79.
Ibid. 1433–1435.
- 80.
Ibid. 1443.
- 81.
Stigler 2014.
- 82.
49 F.3d 807 (1996).
- 83.
Ibid, at 809.
- 84.
Ibid.
- 85.
Rather than typing the whole series each time, the user only needs to type the single pre-programmed macro keystroke, causing the program to recall and perform the designated series of commands automatically.
- 86.
Supra note 82 at 809–810.
- 87.
Ibid. at 810.
- 88.
Ibid.
- 89.
Ibid. at 815, by relying upon 17 USC Section 102 (b) which states that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”.
- 90.
Ibid. at 813. Borland admitted that it had copied the Lotus menu command hierarchy.
- 91.
It did not consider whether it could also be a system, process, or procedure.
- 92.
It can be a car, television or a computer.
- 93.
Supra note 82 at 815.
- 94.
Ibid.
- 95.
Ibid.
- 96.
Ibid.
- 97.
Ibid.
- 98.
Ibid.
- 99.
Ibid. at 817.
- 100.
Hilty and Geiger 2005.
- 101.
Guarda 2013.
- 102.
Ibid. at 446.
- 103.
TRIPs Agreement Article 10(1) deals with copyright protection of computer programs.
- 104.
Indian Copyright Act 1957, S. 2 (ffc). “computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;
- 105.
Indian Copyright Act, S. 14.
- 106.
Ibid., S. 52 deals with fair use provisions.
- 107.
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1526 (1993), Decompilation, is the reversal of the process of compilation; that is, turning object code back into source code. Almost all jurisdictions, including India, have this exemption.
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Unni, V.K. (2017). Software Protection Under Copyright Law. In: Sinha, M., Mahalwar, V. (eds) Copyright Law in the Digital World. Springer, Singapore. https://doi.org/10.1007/978-981-10-3984-3_9
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