Legal Protection of Software
A computer program is primarily protected as a copyright work. The Copyright, Designs and Patents Act 1988 (CDPA) provides that copyright subsists in an original literary work, which is defined as including a “computer program” and the “preparatory design material for a computer program”, although the CDPA does not define what constitutes a computer program. The CDPA is, in this regard, implementing the EU’s Software Directive which provides that a “computer program”, including for this purpose, their preparatory design material, is protected by copyright as a literary work.
However, software is quite unlike the more traditional forms of copyright work – such as books, paintings or letters – for which copyright evolved. Accordingly, the application of copyright to software is not entirely straightforward. In particular, software has a life beyond the black letter of its text in a way that books or paintings do not. It is both a copyright work – in the sense of being a record of information – and a functioning work, which creates effects – such as screen displays or sounds and which may include errors and need to be supported or maintained. This can lead to complications in terms of the legal protection of software by copyright because it is axiomatic that copyright protects the expression of ideas, but not ideas or schemes per se.
2. Confidentiality Laws
While copyright is the main form of legal protection of software, most proprietary software companies also ensure that the source code of the software is kept as a trade secret, and only disclosed under a secrecy agreement where disclosure is necessary, such as to producers of related software. This is because, as discussed above, the source code is the key to understanding how the software functions and is essential for the maintenance of the software, since it will need to be examined to develop the software or correct errors or defects in it.
There are two basic requirements for information to be treated as confidential according to UK law:
- It must have the necessary quality of confidence. In other words, it must not be public property or public knowledge.
- It must be imparted in circumstances importing an obligation of confidence i.e. when shared it must not be done so as if it were public property or public knowledge.
3. Database right
The EU Database Directive (96/9/EC) sought to harmonise the legal protection of databases. A database is a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.
The Directive standardised the “originality” threshold for copyright protection of databases, limiting such protection to databases which “by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” (Article 3, EU Database Directive). This requirement is reflected in section 3A(1)of the CDPA and hence also applies to software.
In the UK, a patent may be obtained in respect of an invention which is new, involves an inventive step, is capable of industrial or technical application and does not fall within any of the exclusions (Patents Act 1977). The owner of a patent can prevent any third parties from selling the product or process which is the subject of the invention. However, section 1(2) of the Patents Act provides that a patent will not be granted for “a program for a computer” to the extent that the patent relates to the program “as such”. This is derived from a similar provision in Article 52 of the European Patent Convention (EPC).