A computer program is a set of instructions called source code written in human readable language that is then converted to a machine readable format, usually but not exclusively in the form called object code. The object code in turn commands a computer to carry out certain functions as instructed by the creator of the computer program.[1]
Being a technical and utilitarian entity, it took a while for computer programs to attain the recognition of an intellectual property. But given the labor, skill and judgment poured into its creation and its fixation in written human language, computer programs ultimately secured its place as a literary work.[2]
As in literary works, programmers received exclusive copyright in reproduction, distribution, adaptation etc. of their computer program. But the sheer enormity and ease in which those rights could be violated across the digital world beyond the control of the creator, especially by copying and reverse engineering within a matter of moments, necessitated bolstering of copyright protection in computer programs. Thus, similar to sound recordings and films, computer programs were brought out of the ambit of “first sale doctrine” or “exhaustion rule”. Hence the copyright owner was accorded the exclusive rights to sell and give for rental any copy of his creation, regardless of whether that very copy was previously sold or given for rental.[3]
However such rental rights[4] were not applicable where the program itself was not the essential object of the rental. For example a computer program embodied within a machine (like a robotic arm) or product (like an e-book/ music CD) and which cannot be copied during the ordinary operation or use of the machine or the product or one that was embodied in or used in conjunction with a limited purpose computer (like that designed only for playing video games).3,[5]
This additional right beyond first sale could be found in the form of “end user license agreements,[6] wherein the author, during sale of a computer program makes a contract that allows the buyer to do certain permitted activities and not the unfettered use allowed after buying a book, thereby preventing legitimate copies of the program being rented and then duplicated ad infinitum.
However, practicality required that the user be permitted certain leeway that would be considered fair use.[7] For example copying and adaptation is permitted to a lawful possessor of a copy of a computer program to utilize it for the purpose for which it was supplied, for archival or temporary back-up copies for the same very purpose, against loss, destruction or damage and for inter-operability between different operating systems running the program. Similar approval is extended to a personally legally obtained copy for non-commercial personal use. In addition any observation, study or test, even some reverse engineering[8] is allowed when it is the only way to get access to the ideas and functional elements in the copyrighted code regarding its intended purpose.
Inevitably human nature pursued the forbidden fruit of violating exclusive rights of the creators of computer programs and widespread software piracy ensued. Programmers sought protection from unaltered copying in the form of either consumer reproduction of machine readable ‘object code’ e.g. copying of an Microsoft Office software from a borrowed CD into one’s own hard drive or commercial reproduction and sale of such pirated copies by illicit street vendors6. These being quite obvious replicas, are forthright identifiable as infringements and prosecutable by copyright statutes.
However copying of original human readable ‘source code’ posed new challenges inviting nuanced application of judicial mind. These activities, also called “follow-on copying” involved incorporating parts of a copyrighted source code in new programs which ranged from moderately improved versions of the original to creation of substantially different programs which contained parts of the original.6 Balance of convenience weighed between economic rights of the creator and inspiration of creativity.
Infringement suits became further convoluted with “non-literal copying”6 which involves creation of a new program that contains the same “Structure, Sequence and Organisation”[9] of an existing program but use none of the original source and object codes. This opened the floodgates of idea-expression dichotomy in software copyright. The “idea” behind an existing software i.e. its intended function, is by principle not copyrightable. So, a new program with functions similar to a copyrighted software, bereft of any reproduction of the “expression” of the existing software i.e. its human readable source code and the machine readable object code, would not then attract liability of infringement.
This necessitated formulation of a principle to compare “substantial similarity” between such existing and new programs. The Abstraction-Filtration-Comparison test[10] usually followed in the US, is one such gold standard which first break down the allegedly infringed program into its constituent structural parts and then compares the elements of software at increasing levels of abstraction, from machine instructions (approaching “expression”) to program function (approaching “idea”), excluding those elements not copyrightable, such as those approaches dictated by efficiency (“merger doctrine”) or the fundamental operation of computers (“scènes à faire”), to evaluate similarity (vide Figure 1[11]).
Firstly, elements available in the public domain are excluded from such comparison.
Secondly, elements in the program which provide the most efficient pathway to meet the user’s needs in the most efficient manner are the most compelling requirements of the industry. These are “filtered” or excluded from comparison because the efficiency of those elements translate them into the only way of expression of the idea or function thus embodying the applicability of the “merger doctrine” to computer programs[12].
Thirdly, such excluded components also include elements that are “scene a faire” i.e. certain elements of a creative work which are held unprotectable when they are mandatory or customary to the genre.[13] Hardware standards and mechanical specifications, software standards and compatibility requirements, computer design standards, user needs, and computer programming practices were thus deemed unprotectable “scenes a faire” for computer programs.[14]
Copyright usually do not mandate any requirement beyond a modicum of creativity but intricacies of high-tech computer programs as outlined above dwells beyond the realm of ordinary human beings. This has thus brought us to a full circle as to whether affording copyright protection to computer programs as only literary works does justice to its case.
[1] Garren, SL. Copyright protection of computer software: history, politics, and technology. Available at : http://hdl.handle.net/1721.1/28007
[2] Anita Goel, “Computer Fundamentals”, Dorling Kindersley(India) Pvt. Ltd., Pearson Education India, 2010
[3] in s. 14(1)(b) The copyright Act 1957
[4] Uruguay Round Agreement: Trips. “Article 11 Rental Rights” World Trade Organization WTO, 2017. [web]. Available at: https://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm
[5] in s. 109 of US Copyright Act 1976
[6] Fisher, William. (2015) The Subject Matter of Copyright: Literature (and software). . Available at: https://www.youtube.com/watch?v=zBNsrX7TFIM&index=8&list=PLzIXbs_6NS8UsVS4kxSshNxdp-xAfd9nS
[7] in s. 52(1) of The Copyright Act 1957
[8] Software copyright: From Wikipedia, the free encyclopedia. Available at: https://en.wikipedia.org/wiki/Software_copyright and references therein.
[9] Whelan Associates Inc. v. Jaslow Dental Laboratory, Inc. Archived 2012-05-31 at the Wayback Machine., 797 F.2d 1222 (3d Cir. 1986)
[10] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, (2d Cir. 1992)
[11] Image copyright belongs with author.
[12] Hollaar, LA. ” Chapter 2: Copyright of Computer Programs ” Legal Protection of Digital Information. Washington, DC: BNA Books, 2002. Digital Law Online [web] Available at: http://digital-law-online.info/lpdi1.0/treatise22.html
[13] Scènes à faire: From Wikipedia, the free encyclopedia. Available at: https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire and references therein.
[14] Idea–expression divide: From Wikipedia, the free encyclopedia. Available at: https://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide and references therein.
DISCLAIMER-
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
AUTHOR:
Dr. Mouri Ghosh
Faculty, WBNUJS
Business Law and its Conflict with Trade Secrets – by Sejal Chaturvedi 