In the late 1980s, Lotus 1-2-3 sued two ``look-alike'' products and won.
Then Visicalc sued
Lotus since head of Visicalc went to Lotus and Lotus looks a lot like
Visicalc, but court found that Lotus was ``different'' enough.
Also in the late 1980s and early 1990s, Apple sued Microsoft on the
basis of apparent similarities between MacIntosh interfaces and Windows.
Initially Apple won, but recently that decision was overturned.
Xerox then sued Apple since Xerox developed a MacIntosh-like interface
prior to Apple's development. Moreover, Steven Jobs, a programmer at Xerox,
left Xerox to start Apple and hired ex-Xerox programmers to work on the
MacIntosh. But Xerox also lost.
Number One Crime - Software Piracy
Software piracy is the illegal copying of software.
Software piracy is the number one computer crime both in terms of dollars
involved and number of people involved.
So why do people pirate software?
Piracy Evils
Most piracy occurs in S.E. Asia and the Middle East, where perfect copies of
software, including manuals and vendor holograms, are produced and sold
openly in markets at reduced prices. Software vendors are very interested
in preventing piracy and/or punishing those who engage in it. Here is
the software vendor argument against piracy.
It is difficult to believe some of the industry claims because
many companies (such as MicroSoft) are hugely profitable. But how are
small companies impacted by piracy?
Piracy Protection
There are three primary legal means to protecting software.
Copyright Law
Copyright law applies to the originality of the expression of an idea
rather than to the novelty of the idea itself.
Does Copyright Apply to Software?
Three special issues in copyrighting software.
Copyright was developed for literary, artistic, and musical works.
Law has to be extended to cover software. How far to extend copyright
law is argued in court cases.
History of Copyright Law and Computers
Look and Feel Suits
Courts have yet to fully define what is meant by ``look and feel.''
Patent Law
History of Patent Law and Computers
| Copyright | Patent | Trade Secrets | |
|---|---|---|---|
| cost of obtaining | nil | moderate | moderate |
| cost of maintaining | nil | nil | moderate |
| availability | wide | narrow | narrow |
| "process" protectable? | no | yes | yes |
| suited to mass distribution | yes | yes | no |
Computer programs or software is a relatively new type
of intellectual property.
Legal protection of computer software
is desirable for the following reasons:
The existence of strong legal protection would encourage the
dissemination of their creations and enable such creators to avoid
duplication of work.
In summary, computer software accounts for greater part of the
high investment in computer technology and its creation requires a
high degree of intellectual effort.
To encourage investment and trade
in software and promote wider accessibility, software deserves to tbe
provided with effective legal protection.
Therefore the producers of software have
relied on the law of confidence, trade secrets,
trade marks, supplying the software in binary
form or using cryptographic techniques.
The copyright law is relevant to protection of software as well as documentation
since these may be considered literary
works when dealing with copyright law.
The copyright protection is not available to the ideas in the
work but the protection focuses on protecting the form in which ideas
are expressed.
This seems particularly appropriate for software and its
documentation because in most cases the intellectual creativity in
computer software resides in the skill and effort used to produce a
particular form of software.
The four major rights of the copyright owner are the reproduction right,
the publication right,
the translation right, and the right to prevent dealings in illegal copies.
The right to reproduce, is a right
to copy a work in any material form (it is not clear whether material
form requires a visible representation of work) and reproducing a
substantial part of the work is also an infringement.
The right
regarding translation and adaptation would seem to include translation
of the source code of a program to object code and from one
computer language to another.
Copyright protection is available as soon as the
work is completed and is available internationally.
There are two worldwide
conventions relating to copyright proper, namely the Berne Convention
of 1886 last revised in Paris in 1971, and the Universal Copyright
Convention (UCC) of 1952, also revised in Paris in the same year.
The UCC was a bridge between the U.S.A., which was unwilling
to join the Berne Convention, and the countries of Western Europe and
the Western Alliance, who were members.
Both certain minimum
standards of protection must be given like a minimum term of
protection of life of the author plus 25 years.
In spite of the international protection provided by copyright and
the fact that it is very cheap and simple to obtain, there are several
areas of uncertainty.
For example :
A patent gives the patentee the exclusive right
for 16 years (in Australia) to make, use, exercise, and sell the
invention.
The Australian patent law allows patents to "the sole
working or making of any manner of new manufactures" to the true and
first inventor.
There is no definition of "invention" or "manner of
new manufacture".
Recent legal opinion in Australia and overseas seems to be that
patents are not appropriate for computer programs.
This is because patents are expensive and
time-consuming to acquire and, although not tested in the courts, the
opinion of the Australian Patents Office has been that "Computer
programs, consisting of sequences of instructions on how a problem may
be solved are not proper subject for letters patent".
In U.K., the Banks Committee (Report on the British Patent
System, 1970) recommended that computer programs be excluded from
patentability.
The European Patent Convention (1973)
expressly excluded computer programs from patentability.
Trade secret laws do not require the subject matter to be novel
or even original.
Also the software need not (and should not) be made
public as in copyright or patent law.
The subject matter need not be
expressed in any particular form.
To protect any information under the
trade secrets law, the owner of the trade secret must be able to prove
the existence of the trade secret, the value of the trade secret to
business and the owner's right to use the trade secret.
The trade
secret remedy will then be available to a person to prevent the
wrongful use or disclosure of trade secrets where the other person is
under an obligation of confidence not to disclose the information.
If a person obtains the software without the owner's consent, it must be
proved that the defendment obtained the trade secret unlawfully or
unethically.
We have discussed three different mechanisms of software
protection.
A comparison of three techniques using 13 different
criteria is presented in the CONTU Report.
We reproduce it below.
Some other mechanisms like trade marks, contracts, licence have not
been discussed here.
1. National uniformity yes yes no
2. Protection effective creation of work successful entrance into
prosecution of contractual
application relationship
3. Cost of obtaining nil moderate moderate protection
4. Term of protection life plus 50 17 years possibility of
years or 75 years both perpetual
protection and termination at any time
5. Cost of maintaining nil nil significant protection
6. Cost of enforcing rights moderatemoderatehigher against violators
7. Availability of
(a) statutory damages yes no no (b) attorney's fees from yes yes no
infringers
8. Protection lost by gross neglect unsuccessful disclosure
litigation
--------------------------------------
Software Considerations, Copyright Patent Trade Secrecy Including Effects of
Subcommittee Proposals
9. Consistency with other yes no no copyright areas
10.Availability of yes unclear yes protective mechanism
for some programs
11.Universal availability yes no no of protective mechanism
for all programs
12."Process" protectable no yes yes
13.Suited to mass yes yes no distribution
Most software houses copyright listings and related documentation
to obtain as much collective protection as possible.
Anderson and Niblett (1976) present results of a survey undertaken in U.K. in 1975 about software protection.
The survey found that 85% of respondents found contract with the
customer effective protection, and trade secrets was also
considered effective by a majority of respondents.
Patents and copyright were considered not to be effective.
Trade marks is also being used by a substantial proportion of
respondents.
Other techniques being used are supplying software in binary form and
using cryptographic techniques.
The Whitford Committee recommended that computer programs and
software which have involved a sufficient degree of skill and/or
labour be considered as works in the normal copyright sense.
The
Committee took the view that ``copyright should subsist in any original
work which is fixed in such a way that the recorded information can be
reproduced...'' and it felt the existing categories of literary and
artistic works are sufficiently wide to cover computer programs.
In the Committee's opinion it is immaterial that
a program may not be
visible to or readable by the human eye or be directly understandable
by the human brain.
According to the Committee, copyright protection provides right
to prevent reproduction and sale.
It also restricts making adaptations
which should include translation from one programming language to
another and from source code to object code.
The Committee expressed
doubt about the protection available when program is used in a
computer.
In practice, it seems that use of a computer program in a
computer necessarily involves reproducing some or all of the program
in a store of the computer, but there is doubt as to whether such
transfer necessarily constitutes reproduction of the program in the
legal sense.
The Committee recommends that storage of program in a
computer should be a restricted act and that new legislation should
explicitly say so.
Other Schemes
Companies have come up with software solutions to protect against illegal
copying. These schemes include the following.
Busting the Pirates
Legal Protection of Computer Software
Protection of the rights to intellectual property has been
traditionally achieved through the patent and copyright laws.
Review Of Available Options
Copyright protection and patent protection.
In practice, most software producers believe copyright
protection to be ineffective and in most countries patent protection
is not available to software.
Copyright Protection
Usually associated with literary, dramatic, musical, and artistic works.
Patent Protection
Patent protection is usually available to new and inventive
technical solutions.
Trade Secrets
Trade secret protection is available to any information, device,
formulae etc. to protect a business from unlawful or unethical
acquisition of secrets by a competitor.
Trade secret protection is a tort (civil) remedy.
The law of trade secrets depends on non-disclosure or at least
very limited disclosure of information.
There are a number of laws
which directly penalise or provide civil law remedies against the
misappropriation of a trade secret or of information obtained in
breach of confidence.
Secret information can also be indirectly
protected by certain provisions in criminal law, by general provisions
in civil codes or by certain actions in the law of tort.
Other Forms of Protection
The laws of certain countries provide a number of means of
preventing the unauthorised disclosure or use of secret information.
There are a number of laws which directly penalise or provide civil
law remedies against the misappropriation of a trade secret or of
information obtained in breach of confidence.
A common means of protecting information concerning
computer software, which is provided by all laws, is by contract.
Even in the absence of an express term in
a contract, persons in a fiduciary relationship with a computer
enterprise, such as its employees, can be prevented from disclosing
secret information.
Secret information can also be indirectly
protected by certain provisions in criminal law, by general provisions
in civil codes or by certain actions in the law of torts.
Even in the absence of secrecy, the misappropriation of computer
programs may, in certain circumstances, be actionable in the
context of unfair competition law.
However, even in countries where trade secrets can
be protected directly, there is uncertainty or differences as to the
scope of protection and as to the conditions (for example, whether
disclosure to a licensee or to a restricted number of other third
parties would prejudice the secrecy of the know-how protected).
The disadvantage of protection under contract law is that in most cases it
will be difficult to prevent persons outside the contractual
relationship from disclosing or using a program.
Moreover, one of the
advantages of the establishment of clear and adequate legal protection
for computer software is to encourage greater disclosure of
information on computer software which would otherwise be vulnerable
to misappropriation.
The aim of such protection is therefore precisely
to avoid any necessity to rely on secrecy and on laws and legal
measures safeguarding secrecy.
Reddien (1979) talks about contracts and how a contract should be formed.
General Considerations
Copyright Patent
Trade Secrecy
------------------------------------------
PRESENT SITUATION
At present software producers are using one or more of th e
protections discussed in the last section.
In a survey quoted by Anderson and Niblett (1976), ADAPSO in USA
found that its members used the following techniques :-
SOLUTIONS
Several expert committee have now looked at the problem of legal
protection for software.
The important one have been :
The Whitford Report
The Whitford Committee found that almost all submissions to it
called for a clear and effective protection for software either under
the general law of copyright or under some special software
legislation.
It is suggested that legal protection will encourage
speculative development of programs with a
view to profit and encourage those who develop programs for their
own use to make them available to others.