Back in the late 1960s, the trend of “unbundling” software from hardware lead to a significant expansion of the software industry and triggered a clear necessity for the introduction of legal mechanisms for protection of computer programs. A central issue in the debates that followed in the next decades was whether legal protection should be given under the existing principles of copyright law or patent law or possibly under a new “sui generis” system of protection (“sui generis” is a Latin phrase, meaning “of its own kind, in a class by itself, unique”). Initially, a strong stance was taken in favor of “sui generis” protection. This resulted in the production of the Model Provisions on the Protection of Computer Software in 1977 and the Draft Treaty for the Protection of Computer Software in 1983. However, the Draft Treaty could not gain sufficient support. Subsequently, the World Intellectual Property Organization (WIPO) decided to pursue a study on the protection available under existing copyright law. A committee of experts was convened jointly by WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the beginning of 1985. The result of this effort was a significant shift towards a tendency of accepting copyright as the appropriate form of protection for software. Additionally, a broad consensus was starting to form that in view of their legal protection computer programs may be assimilated to literary works. In the following years more and more countries started to enact legislation that embodied the approach of protecting software under copyright law. As a result, nowadays copyright has decisively won the battle against a “sui generis” approach for the legal protection of software.
Two international treaties reflect the achieved consensus that software has to be protected under the regime of copyright law. These are the Agreement on trade-related aspects of intellectual property rights (the TRIPS agreement) and the WIPO Copyright Treaty (WCT). Furthermore, within the EU a harmonizing legislative act has been issued to regulate copyright protection of software – Directive 2009/24/EC on the legal protection of computer programs (the Software Directive) which codifies the amended content of Council Directive 91/250/EEC of 14 May 1991. Along with the mentioned legal instruments, certain provisions of the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) are also relevant for the copyright protection of computer programs. This brief analysis will first focus on the basic principles of the legal regime established by the abovementioned regulatory instruments before proceeding with a summary of its strengths and weaknesses.
A closer look at the copyright regime
Article 1, paragraph 1 of the Software Directive establishes the core concept behind the copyright model of software protection – the imperative that computer programs should be treated as literary works within the meaning of the Berne Convention. The same imperative is also reflected in Article 10 of the TRIPS agreement and Article 4 of the WIPO Copyright Treaty. The reference to the Berne Convention results in the applicability of its various rules setting minimum standards for protection of literary works. A clarification becomes necessary here about a key conceptual difference that exists between the text of a computer program and the texts of literary works. This crucial difference lies in the fact that a computer program has a functional aspect that cannot be found in any other literary works. Due to its functional aspect, the text of a computer program can be transformed into instructions that govern a computer.
Article 1, paragraph 2 of the Software Directive postulates a key general rule – copyright protection of software covers only the expression of an idea but not the idea itself. The same rule can also be found in Article 9, paragraph 2 of the TRIPS agreement and Article 2 of the WCT. The rationale behind this rule lies in the fact that ideas may be freely used but it is their specific creative expression that brings originality to a particular work and this expression should be protected.
As noted above, it is important to clarify that computer programs have a dual nature – they consist of code (source code and object code) but they can also produce a certain functionality – i.e. they can execute processes in the real world. Source code represents a logical algorithm introduced by a programmer and expressed in a programming language that the computer follows in order to reach a specific result. At the same time, object code is machine-readable code which is executed by the hardware in a way to control the operations of a computer. As a result, a computer program represents both a textual expression and functionality. This presents an obvious difficulty in terms of legal protection since in general the results of a creative process can be labeled as either an expression or a functionally and consequently protected as such. The regulatory approach dictates here that both source code and object code shall benefit from treatment as protectable subject matter under copyright law. This is expressly reflected in Article 10, paragraph 1 of the TRIPS agreement and also in the case law of the Court of Justice of the European Union (in this sense Judgement in Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, paragraph 34). At the same time, the functionality of a computer program cannot be protected under copyright law as it sits closer to the concept of an idea than an expression.
Article 1, paragraph 3 of the Software Directive establishes the condition for originality as the only applicable requirement for granting copyright protection to a computer program. The Software Directive requires only that the computer program is “is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection”. In its case law the CJEU further elucidates the originality requirement in the following way – “As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices” (Judgment of the Court of 1 December 2011, Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10, paragraphs 88-89).
Article 4 of the Software Directive enlists the exclusive rights of a rightholder in view of a computer program. First, it establishes a strong exclusive right of reproduction. Any permanent or temporary reproduction of software by any means and in any form, partially or in whole, is a restricted act and can only be performed subject to authorization from the rightholder. Second, the rightholder possesses an exclusive right in view of any alteration of the computer program – translation, adaptation, arrangement and any other modification. Third, the Software Directive grants the right holder with an exclusive distribution right.
Additionally, three key principles introduced by the Berne Convention are also applicable to the copyright protection of computer software. First, pursuant to the principle of “national treatment” developed in Article 5, paragraph 1 of the Berne Convention, works that originate in one of the contracting states must be given in each of the other contracting states the same protection as that granted to works of their own nationals. Second, the principle of “automatic protection” established by Article 5, paragraph 2 of the Berne Convention, dictates that legal protection shall not be subject to any formality. Third, pursuant to the principle of independence of protection, the minimum protection provided by the Berne Convention shall be independent of the existence of legal protection in the country of origin of a specific work.
Under the Berne Convention, the general rule is that copyright protection for literary works shall last for the life of the author and 50 years after the death of the author. As for the applicable term of copyright protection for software in the European Union, it was initially set to 50 years after the death of the author but later that term was extended to 70 years after the respective event (in this sense Article 1, paragraph 1 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights).
The advantages
The choice of the copyright regime as the main applicable method for protection of computer programs presents a compelling number of advantages. First of all, protection is easy to obtain. The requirement of “originality” is relatively easy to meet – the work should not be copied from an earlier program and it should embody certain creative choices employed by its author. Second, the term of protection under copyright law – at least 50 (or 70) years after the author’s death – is far longer than that afforded by other forms of protection. Third, protection is automatically granted, in most jurisdictions, when the author objectifies his or her work in a tangible medium as demonstrated by the applicable principle of ‘automatic protection’ under the Berne Convention. Fourth, the copyright regime provides great flexibility for widespread international protection, both under the Berne Convention and the TRIPS agreement which is binding for all members of the World Trade Organization. As already explained, each country which is a contracting party to the Berne convention is obliged to provide copyright protection to literary works produced in any other country which is also a party to the treaty. Fifth, copyright provides for strong protection of the exclusive rights of reproduction and distribution and thus ensures a certain shield against piracy. The practical benefit of all these demonstrated strengths is that the mere creation of a computer program would result in a right with international span that arises immediately without the need for any further action, which is non-registrable, costs nothing and also ensures relatively strict and wide-ranging level of protection for a very long term.
The disadvantages
At the same time, copyright protection of software is characterized with certain flaws. As elaborated, computer software consists of text (source code) and functionality. Copyright protects only the expression of the idea, i.e. the code of a program, its text, but does not protect the underlying idea and the achieved functionality. Thus, the copyright regime would not be able to provide legal protection if a program is developed independently (has a different source code and is developed in a different programming language) but is based on the exactly same idea or produces the exact same functionality as an existing program. Therefore, copyright does not provide adequate protection for non-literal copying of software. However, it can validly be argued that if copyright protected the ideas or functionalities behind software that might result in monopoly over concepts and could stifle innovation and competition. Building up on the previous argument some authors present another shortcoming of copyright protection – the fact that in some circumstances it might reinforce existing barriers for market entry. This is attributed to the ease with which it’s possible to develop software with identical functions to a previously released computer program without copying its code. As a consequence, if innovative software is placed on the market it may not have sufficient time to provide return on the investment made since it’s possible for functionally identical software with different source code to undercut its market very quickly. This scenario could specifically affect small and start-up companies. Furthermore, it can be argued that the long term of protection for software is inconsistent with the dynamics of the software industry and may inhibit the development of software programs.
An inherent characteristic of computer software is that it is costly to prepare but easy to copy. Copyright protection manages to take these specifics into account and to produce an effective regulatory framework with international reach that promotes investment in the development of computer programs and ensures strong protection against infringing acts. The established regime is certainly not perfect but its advantages outweigh its flaws and so far it manages to strike a fair and productive balance between the interests of the software industry and those of the end users.