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Computer Works

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28 views4 pages

Computer Works

Uploaded by

Akello Winnie princes
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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INTELLECTUAL PROPERTY LAW COURSE WORK

IWOLIT JOSHUA| 121-053011-24862


KHISSA VIRGIL |121-053011-24024

HOW COPYRIGHT APPLY TO COMPUTER PROGRAMS


Copyright refers to “the right to copy; specifically, a property right in an original work of
authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural,
and architectural works; motion pictures and other audiovisual works: and sound recordings)
fixed in any tangible medium of expression, giving the holder the exclusive right to
reproduce, adapt, distribute, perform, and display the work.”

Intellectual property law offers extremely limited possibilities for protecting a computer
program in its most basic form, including fundamental hypotheses, rule-based relations,
mathematical equations, models, and diagrams.

This however, presupposes that computer programs could be a proper subject of copyright
protection.

Copyright is similarly unfavorable to computer programs, at least in their barest form. Article
9 of the Trips agreement provides that copyright protection shall extend to expression and not
ideas, procedures, and methods of operation or mathematical concepts.

Article 10 of the TRIPS agreement obliges all member states to “protect computer programs,
whether in source or object code, aas literary works under the Berne Convention”

Similarly, S.6 of the CNRA is to the effect that ideas, concepts, procedures, methods or other
things of a similar nature shall not be protected by copyright.

A computer program could easily be classified as an idea, a system, a concept, a principle, or


a discovery, and denied protection on that basis. At a more fundamental level of copyright
law, S.6 and Article 9 derive much of their substance from the idea-expression dichotomy,
which dictates that abstract ideas are not copyrightable, while the specific expression
embodied in a work is.

While there is no good way to distinguish an unprotected ‘idea’ from a protected


‘expression’. In Nicholas v Universal Pictures Corp. it was stated that’’ Nobody has ever
been able to fix that boundary, and that nobody ever can.’’
The general spirit of the idea-expression dichotomy is to prevent copyright protection from

monopolizing necessary building blocks of expression like words, stock elements and high-
level concepts. Copyright protects computer codes that contain dry content intended to
support functionality by protecting only the expression of that functionality.

Therefore, copyright is a form of protection provided to authors of original works fixed in a

tangible medium. When people think of works that are protected by copyright, they think of

artistic creations such as novels, music, multimedia expression, and works of art. However,

copyright protection can also extend to non-fiction and technical writing, as well as to design

work for computer software and architecture. Material that is posted on the internet is also

subject to copyright law.

Under S.5, computer programs and electronic data banks and other accompanying materials
are eligible for copyright. A computer program means "a set of instructions expressed in any
language, code or notation, intended to cause the devise having an information processing
capacity to indicate, perform or achieve a particular function, task or result."

Computers are electronic machines with the capacity to store and process data.

Prof. David I. Bainbridge observes that ‘’copyright law protects computer software, whether
it be computer programs, databases, computer files, or printed documentation.’’ To merit
copyright protection, a work must qualify as original within the meaning of the copyright Act.

Originality is comprised of two elements; Original creation by the author or creator of the
work, and Evidence of a modicum of creativity in the work. Each of these requirements
merits attention when considering the potential copyrightability of a computer program.

A computer or invention is not merely the product of nature or a set of dry facts. Where it is
simply the scientist’s job to reveal the inner workings of nature in its theoretical form, then
the resulting theory would scarcely qualify as original to the scientist: it would be original to
the external universe being studied.

Furthermore, computer programs are not simply a process of revelation or discovery, but of
creation. Therefore, a computer invention might potentially merit copyright protection and
there should be strong reasons for depriving a person of property rights in what he/she has
created.
Article 10(1) and Article 10(2) provide that computer programs, whether in source or object
code, shall be protected as literary works under the Berne Convention of 1971. Such
protection applies to computer programs, whether may be the mode or form of their
expression.

As to whether computer programs qualify asliterary works worth copyright protection, in the
American case of Apple Computer Inc. v Franklin Computer Corp, one of the issues was
whether computer works qualify as literary works worth copyright protection? Sloviter J
Held; that a computer program whether in object code or source code, is a literary work and
is protected from unauthorized copying whether from its object or source code version. The
protection of computer programs as writings entails, furthermore that the rights pertaining to
copyright protection also apply to such programs. In particular, the right of reproduction, the
right of distribution of copies and the right of communication to the public should be
applicable.

Copyright protection also applies to databases. Article 10(2) and Article 5, provides that ‘’

compilations of data or other material whether in machine readable or other form, which by

reason of the selection or arrangement of their contents constitute intellectual creations are

protected as such.

The justification for the legal protection of computer software is because the subject matter of
intellectual property is the result of the existence of human intellect; it is a fundamental form
of property. Therefore, there should be strong reasons for depriving a person of property
rights in what he/ she has created.

The copyright in a computer program is infringed by making, without the copyright owner’s
license, a copy of the program or of a substantial part of it. Substantiality is an issue of
quality and therefore, the copyright subsisting in a computer program can be infringed if the
essence of the program is copied, even if the part copied is relatively small quantitatively.

In Cantor Fitzgerald International v Tradition (UK) ltd, it was held that every part of a

computer program could be a substantial part of the program.


Copyright offers the further attribute of fair use, which would allow many applications of
protected scientific inventions without requiring the license.

The justification for the legal protection of computer software is because the subject matter of
intellectual property is the result of the existence of human intellect, it is a fundamental form
of property. There should be strong reasons for depriving a person of property rights in what
he or she has created”.

It is therefore clear that CNRA offers legal protection of computer programs including
software and compilations of data as required under the TRIPS Agreement.

In conclusion, the data processed by a computer, or the data that result from such processing,

may well be protected by copyright

BIBLIOGRAPHY

 Bakibinga D.J and Kakungulu R.M, Intellectual Property Law in EastAfrica


 Bainbridge I. David, Introduction to Information Technology Law, 6th Edition, 2008.
 Bainbridge I. David, Legal Protection of Computer Software, 5th Edition, 2008.
 Bryan A.Garner, Black’s Law Dictionary 10th Edition

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