Monday, 11 February 2013

Copyright in software better defined

I've always understood that there is a difference between form and content. There is no intellectual property in the form and structure of a book but there is in the content of the book: the design of the cover and pages and the words and images it contains. In computing (and hence interactive media) this distinction is less clear cut because everything is 'made' of computer program and we tend to also talk of the form and function (what it looks like and what it does) of a program as well as any content that a user might produce using that program.

A recent decision by the UK High Court has clarified what is protected by copyright when it comes to a computer program. This follows from decisions by the Court of Justice of the European Union and the late Lord Justice Pumfrey.

The case before the High Court was a battle between two software companies, SAS Institute Inc and World Programming Limited where SAS claimed that WPL, in reproducing the functionality of piece of software had infringed copyright.

The whole judgement makes for somewhat arcane reading but one key quote is this:
...copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.

I must assume that programming language has the obvious meaning here: PHP, C++, Algol ... whatever the application was written in (in the case here it appears to be a bespoke language). The component parts of a computer language are words (albeit ones with very specific meanings) and it is up the the programmers how they use these words to tell the computer what to do. In this sense it is like a recipe written in English. The recipe might be copyright but the English language it uses is not. So the computer program is copyright (as a work of literature if nothing else) but the language is not (although it might have elements that could be patented as covered by this BBC news story). That seems sensible.

The file formats make an interesting case. Finding a linguistic analogy is tortuous but you could say that the format of a haiku is like a file format. If you write your poem in the appropriate way it is a haiku, otherwise it's not. However, that doesn't mean that anyone could claim copyright in the form of a haiku does it? If you're reverse engineering something such as a word processor then you need to be able to write files in the appropriate format; so this judgement clarifies that situation.

Funtionality takes us back to long-standing arguments about copying how a program works and what it does. The graphical and textual elements of an interface can be copyright if either is, as the judgement notes, "... its author's own intellectual creation...". This does not apply to the function: so we can broadly say that form (notably any graphical user interface) may be copyright but function can not be.

As it happens, the only thing that was infringed in this case was copyright in the user manuals, which is a literary work (presumably with a few illustrations) in any case so had to be a slam dunk.

See SCL and Field Fisher Waterhouse's Tech Bytes blog for more detail and the ruling itself for the literal chapter and verse ... and remember that I am not a lawyer and this blog does not constitute legal advice.

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