SOFTWARE COPYRIGHT

'Software copyright', the relatively recent extension of copyright law to machine-readable software. It is used by proprietary software companies to prevent the unauthorized copying of their software. It is also used by proponents of open source software to encourage the disclosure of improvements to source code. (See copyleft)

Contents

United States

European Union

Japan

India

Copyleft

References

See also

United States

When installing a program a copy is often made to the hard drive of a computer. When launching a program, a copy is made into memory. When visiting a web page a copy is sent over a network. All these activities are allowed in the United States under of the US Copyright Act.
Historically, computer programs were not effectively protected by copyrights because transfixing a computer program into the memory of an electronic information system is not permanent without a storage device. Computer companies, therefore, used software license agreements (also known as "end-user license agreements" or EULAs) to prevent unauthorized copying.
When the federal courts interpreted the Copyright Act to give computer programs the same copyright status as literary works, companies continued to license their products to avoid transfer of their copyright to the end user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). They also wanted to retain search and seizure powers to uncover unauthorized copying.
Most software consumers are unaware that the grants made in most EULAs are already granted by section 117 of the US copyright act while at the same time take away the rights granted to the consumer by the "Limitations on exclusive rights of the copyright holder" codified in sections 107-122 of the US Copyright Act. The EULA has become so predominate that most take the EULA contract for granted, and typically do not read them, and clicking it as a necessary evil to use any commercially available software.
Since most software is licensed and not sold, the 117 exemptions do not apply. ''MAI Systems Corp. v. Peak Computer, Inc.'' and ''Triad Systems Corp. v. Southeastern Express Co.'' are two excellent cases demonstrating how licenses can be used. In both cases the defendant was repairing or maintaining machines for another company. Section 117 of the Copyright Act states that "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided...that such a new copy or adaptation is created as an essential step in the utilization of the computer program." Although the service and maintenance that was done in both MAI and Triad was an "essential step in the utilization of the computer program," and thus immune to an allegation of infringement, the defendants in these two cases were found to have infringed the software vendors copyright because the software that their customers were using had been "licensed" to the customers, not "sold." In both of these cases, the court noted that the duplication rights provided under Section 117 only applied to an "owner" of a copy. The court concluded that a "licensee" was not an "owner."
Section 117 has since been modified by the Digital Millenium Copyright Act to allow repairs of computers.
Other case law supports the position that there is "no difference between a license and sale of protected materials.." and that "to call a sale a license is mere play on words" (''Bauer & Cie. v. O'Donnell'' and ''Bobbs-Merrill Co v. Straus'') thus bringing the enforceability of the EULA and the practice of licensing copyrighted materials for end-use into question.
Original graphics, designs, and text appearing in a software user interface may qualify as copyrightable look and feel. They can also be protected with a design patent.
The set of operations available through the interface is not copyrightable in the United States under ''Lotus v. Borland'', but it can be protected with a utility patent.
In ''Apple v. Microsoft'', the courts established that a look and feel copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.

European Union

Software is copyrightable in the European Union. ^[1] Specifically, it is (with a few very limited exceptions) unlawful for anyone other than the owner of the rights to run the program, copy the program, modify the program or distribute the program, except with the permission of the rights owner. No registration, copyright notice, or other such formality is needed to establish copyright. Copyright protection is automatic. ^[2]

Japan

India

Software is copyrightable in India, but enforcement is difficult. ^[3]

Copyleft

A copyleft is a type of EULA that requires an end user to make the source code of software derived for an original copyrighted piece of source code available under similar terms.

References

1. Software Copyright IPR Help Desk
2. This section was originally excerpted from “Software Copyright, IPR Helpdesk”. IPR Helpdesk specifically grants permission for copying provided proper attribution is given and provided that the use in non-commercial See IPR copyright notice
3. Meeker, Heather, "Only in America? Copyright Law Key to Global Free Software Model, LinuxInsider, May 16, 2006

See also

★ Copyleft

★ Copyright infringement of software

★ Copyright law

★ Software patent

★ Warez

★ Free software licence