Ownership, Originality, Copying and Infringement of Software Copyright Background The WritePass Journal

Ownership, Originality, Copying and Infringement of Software Copyright Background Abstract Ownership, Originality, Copying and Infringement of Software Copyright Background : 143). However, Arnold J stated that because of the uncertainty surrounding software programs a referral to the ECJ was required. On being referred by the High Court, the ECJ held that the copyright available to computer programs under the Software Directive does not protect the functionality of a computer program, its programming language or the format of data files used in it. In January 2013, the High Court applied the ECJs ruling, yet the High Courts decision was upheld by the Court of Appeal in November 2013. In accordance with this it is likely to prove very difficult for FTS to establish a claim in copyright and even if this can be ascertained, they will still have to demonstrate additional copyright requirements, such as ownership. Accordingly, software cases also give rise to ownership issues since there will often be more than one author due to the complexity and size of computer codes generally. Nevertheless, section 9 (1) CDPA makes it clear that the owner of a work is the person that has created it. As this is a computer-generated work, it will thus be the person who arranged for the creation of the work (section 9 (3)) unless he has created the work within the course of employment. If it is found that Bill created the work, FTS will still be the owner as the ownership of copyright remains vested in an employer if the creation was made during the course of employment (section 11 CDPA). Nevertheless, as evidenced in (1) Laurence John Wrenn (2) Integrated Multi-Media Solutions v Ste phen Landamore [2007] EWHC 1833 (Ch) each case will be decided on its own facts. Here, it was held by the court that since there was a written agreement between the parties, an exclusive license could be implied. Regardless of these difficulties, however, software can still be afforded copyright protection and the most common act of infringement that occurs in relation to source or object codes is unauthorised copying. Here, a distinction needs to be made between literal and non-literal copying. Literal copying occurs when an identical copy is made, whereas non-literal copying occurs when the structure, appearance or manner of the code has been copied (Pila, 2010: 229). In the case of literal copying, it will generally be easier to establish a claim of copyright since it will merely have to be shown that a substantial part of the code has been copied, which will be based upon the skill, labour and judgment that has been expended; Cantor Fitzgerald International and Another v Tradition (UK) Limited and Other [2000] RPC 95. In the event that there has been a non-literal copying of the works, it will be a lot more complex to establish. This is because it is often the case that two completely dif ferent programs will produce the same results. Therefore, although it might appear on the face of it that the program has been copied; this may not actually be the case. In Thrustcode Ltd v WW Computing Ltd [1983] FSR 502 it was noted by the Court that; the results produced by operating the program must not be confused with the program in which copyright in claimed. Another consideration FTS will need to think about is if the codes were originally created by a third party. This is because if a third party has been commissioned to create the copyrighted work, ownership of that work will remain vested in the third party unless there has been an express agreement to the contrary (Lyons, 2005: 3). If no such agreement has been made, the court may imply an assignment or licence so that FTS can use the software, although the scope of an assignment or licence will depend entirely upon the facts of the case. In Robin Ray v Classic FM Plc [1998] FSR 622 it was held by the Court that both parties had accepted the law in relation to the implication of terms as to ownership and the licensing of copyright. Arguably, it is evident that whilst FTS may have a claim against Bill for copyright infringement, it will be very difficult to prove because of the complex nature of software copyright. Conclusion Overall, given the long process that is involved with software development, it is likely that FTSs legal advisers will have to overcome a number of obstacles before they can establish a claim in copyright. Consequently, they will first need to establish that they are the author of the products code and that it was an original creation. Once this has been ascertained they will then need to show that their product has actually been infringed by Bill, which may prove extremely difficult given the complexity of software programs. References Campbell, D. and Cotter, S. (1998) Copyright Infringement, Kluwer Law International. Lyons, T. (2005) Warning All Software Users, Electronic Business Law, Volume 7, Issue 9. Morton, T. (2013) Emerging Technologies and Continuity, Tolleys Practical Audit Accounting, Volume 24, Issue 12. Pila, J. (2010) Copyright and Its Categories of Original Works, Oxford Journal of Legal Studies, Volume 30, Issue 2. Reed, C. and Angel, J. (2003) Computer Law, 5th Edition, OUP Oxford. Case Law BezpeÄ nostnà ­ softwarov asociace – Svaz softwarovà © ochrany v Ministerstvo kultury, Case C-393/09, 22 December 2010 Cantor Fitzgerald International and Another v Tradition (UK) Limited and Other [2000] RPC 95 Infopaq International A/S v Danske Dagblades Forening [2009] EUECJ C-5/08 (16 July 2009) (1) Laurence John Wrenn (2) Integrated Multi-Media Solutions v Stephen Landamore [2007] EWHC 1833 (Ch) Navitaire Inc v Easyjet Airline Co Anor [2004] EWHC 1725 (Ch) Robin Ray v Classic FM Plc [1998] FSR 622 SAS Institute v World Programming Ltd [2010] EWHC 1829 (Ch) Thrustcode Ltd v WW Computing Ltd [1983] FSR 502