Intellectual Property Protection for Computer SoftwareFrom: Michael Current (aa700@cleveland.Freenet.Edu)
Date: 07/13/94-12:53:18 PM Z
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From: aa700@cleveland.Freenet.Edu (Michael Current) Subject: Intellectual Property Protection for Computer Software Date: Wed Jul 13 12:53:18 1994 Intellectual Property Protection for Computer Software As submitted to Atari Classics magazine Atari Classics, February 1994, pp. 4-7 Copyright (c) 1993 by Michael Current Submitted to Padmini Srinivasan for Introduction to Information Science November 30, 1993 The legalities involved in the field of computer software are many and varied, and they are often poorly understood. This document attempts to clarify the roles of the laws of intellectual property protection for computer software, with particular emphasis on copyright. While copyright protection is the central topic here, other areas relevant to computer software include patent protection, trade secret protection, and trademark protection. Each of these are also briefly discussed. Once adequate background in copyright law has been provided, popular terms such as "commercial software," "shareware," "freeware," and "public domain" software are defined and explored in their legal meanings, and a few ethical questions are posed as well. Basic Intellectual Property Rights Ideas, symbols, names and forms of expression may all be considered examples of intellectual property. If the author or inventor chooses to allow the use of his/her property by others, the intellectual property laws come into play. These laws attempt to strike a reasonable balance between the ability of authors and inventors to control the use of their property, and the rights of the public at large to the access of new ideas and forms of expression. Laws of Intellectual Property Protection The United States Congress offers creators of computer software three direct types of intellectual property protection: patent protection, copyright protection and trade secret protection. Many products make use of two or even all three of these techniques. [9,p.2] Additionally, trademark protection may be employed to protect a product name, symbol, device, or a combination of these, from use or misuse by others. Trademark registrations cover an initial five-year period, then renewable twenty-year periods so long as the trademark remains in use. Patent Protection A patent protects ideas and algorithms in a product rather than the particular set of code used to implement them. Also, by providing 17 years of exclusivity in the marketplace, patents usually are the most powerful and broad form of protection available to the developer, as long as the invention in question is "nonobvious" in nature. Two types of patents are utility patents and design patents. Examples of utility patents include inventive functions, methods, systems, and algorithms, including applied mathematical formulas. Design patents, while not protecting the functional aspects of a screen display or a portion of computer code, protect the graphical or ornamental aspects of a screen display. Over 10,000 United States patents had been granted on software invention by 1989, yet patents for computer software remain not widely utilized. [9,p.3] This can be attributed to the unofficial opposition to the practice by the Patent and Trademark Office, the very high relative cost of obtaining a patent, and the several-year application process necessary to obtain a patent. Also, the large amount of disclosure of product information required can jeopardize the possibility of trade secret protection. [6,p.83] Copyright Protection The United States recognizes the following seven rights exclusively to a copyright holder: 1) reproductive right: to reproduce the work in copies 2) adaptive right: to produce derivative works based on the copyrighted work 3) distribution right: to distribute copies of the work 4) performance right: to perform the copyrighted work publicly 5) display right: to display the copyrighted work publicly 6) attribution right (or, the paternity right): to claim authorship of the work and to prevent the use of his/her name as the author of a work he/she did not create 7) integrity right: to prevent the use of his/her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work [4,part2] Copyright applies to virtually all computer software. It protects the form of expression, both source and object code, from duplication or close imitation. Beyond the program code itself, copyright may be applied to the program's structure, sequence and organization, and some elements of the user-interface (the "look and feel"). The copyright holder may prevent others from modifying or adapting the product for distribution in its modified form. Protection under copyright is easily obtained and enforced, but cannot protect underlying functions, methods, ideas, systems or algorithms, and it cannot protect against independent creation of the same or a similar work. Trade Secret Protection Information and ideas must be of value, not readily known to others, be providing a demonstrable competitive advantage, and be subject to reasonable efforts to maintain their secrecy to qualify for trade secret protection. Code, ideas, and concepts may be treated as trade secrets so long as they are not obtainable through other products by lawful means, including reverse engineering. The technology is not protected if it is produced independently by others. The idea may even be patented by others if they develop it independently. A trade secret is forever lost when the secret becomes general knowledge. Usually trade secret protection is used in combination with patent and/or copyright protection for software products to provide more complete protection. Copyright in Detail The copyright laws are found in Title 17 of the United States Code, which is based on the Constitutional power of Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors...the exclusive Right to their...Writings..." [4,part2] With this basis, copyright law does not protect ideas, only ways in which they are expressed. The 1909 Copyright Act was inadequate for addressing computer software, yet the Copyright Office chose to accept computer programs as literary works beginning in 1964. [6,p.35] The present Copyright Act was passed in 1976 and became effective January 1, 1978. The question of copyrightability of software programs was temporarily put off, to be settled by the National Commission on New Technological Uses of Copyrighted Works. This finally led to the Computer Software Copyright Act of 1980, amending the 1976 law so that it explicitly applies to computer programs. [6,p.35] Copyright Is Automatic If a software program was originally created by the author and not copied from someone else, and it is stable enough to be stored in any way, then it has been automatically protected by copyright law since the moment of its creation. Protection under copyright extends for the life of the author and, except for rights six and seven above, 50 years beyond the author's death. In the case of "works made for hire," (discussed below) protection spans for 75 years from the year of first publication or for 100 years from the year of creation, whichever ends first. Although copyright protection is automatic, to protect against "innocent infringement" a proper copyright notice (described below) should be used, and to challenge a copyright infringer in court also requires registration of the program with the Copyright Office. If It's Not Copyrighted, It's Public Domain As of March 1, 1988, the effective date of the Berne Convention Implementation Act, a work does not require a notice of copyright to be protected under copyright law. However, if the copyright has expired, if the software was published without copyright notice before 1988, or if the copyright is expressly abandonded by the holder, then a computer program becomes part of the public domain. Once in the public domain, there are no legal rights associated with that software. It may be freely copied, enhanced and sold, without any kind of compensation to the original author. Copyright Notice A legally recognized copyright notice consists of the following: -- a copyright symbol -- the year of first publication -- the name of the copyright owner, or company in the case of works made for hire Under the Copyright Act of 1976 the copyright symbol was either " ," "Copyright," or "Copyr.," but "(c)" was not legally sufficient. However, no such copyright notice has been required since the United States joined the Berne Convention in 1988. On the other hand, to be protected under the Universal Copyright Convention (U.C.C.) treaty, which includes some countries that have not signed the Berne Convention, a copyright notice as described above is still required. Note that the U.C.C. only recognizes " " as the proper copyright symbol. Also seen in the field is the phrase "All rights reserved." This phrase was required under the Buenos Aires Convention, but all members of that treaty are now signatories of either the U.C.C. or the Berne Convention, so "All rights reserved" no longer has any meaningful purpose. Copyright Registration A copyright owner may register a copyrighted work at any time during the duration of that work's copyright protection. This must be done in order to be able to bring suit against an infringer of the copyright. However, monetary compensation is largely only available if the work was registered before the infringement took place. [6,pp.51-2] Registration of copyright involves sending the required deposit material, consisting of source and/or object code, plus a $10 filing fee to the Copyright Office of the Library of Congress. Because materials that are deposited are available for public inspection, a variety of special rules may be invoked to protect possible trade secrets contained in the machine code. [6,p.53] Co-ownership, and Works Made for Hire Copyright ownership by default rests with the original author of a software. If there are co-authors, then each author is a co-owner of copyright for the work. Co-ownership of copyright, as in other material items, can be very inconvenient and produce legal headaches if disagreements arise. A work made for hire, on the other hand, is either -- a work created by an employee being paid for the creation of that work, or -- a work commissioned outside the company as part of a set of related products being collectively developed. The first case always results in the copyright ownership resting with the employer, while in the second case ownership remains with the author unless it is expressly agreed in writing that ownership is transferred to the employer. Such agreements are the rule rather than the exception. [4,part3] Piracy is Copyright Infringement Copyright infringement occurs whenever one of the seven rights exclusive to the copyright holder are violated, and is popularly termed "piracy." If the violation occurs within the scope of employment, then the employer is also liable for the act, even if unaware of the employee's activities. Any person who induces or causes another to commit copyright infringement is liable as well. When considering whether piracy has taken place, the concept of "fair use" must be understood. That is, the law expressly allows for any copying steps necessary for legitimate use of the software, such as copying the program from disk to RAM. The second part of "fair use" is the right to make a personal copy of the software for archival purposes, so long as all copies are either transferred with the original upon change of ownership, or are destroyed at such a time. However, it is important to note that "fair use" only applies to copies of software that have been purchased. Much of today's software is not purchased by users but rather licensed to users. [9,p.46] In this case the license agreement will expressly state what rights are granted to the licensee (user), while all other rights remain with the copyright owner. The Popular Terminology Lowest on the hierarchy is public domain software, software that may be freely copied, modified, and/or sold for profit, without notification or compensation of the author. It has been shown above that software placed into the public domain is the exception rather than the rule. The only way for a program to enter the public domain is for the copyright holder to unambiguously declare it so, thereby forfeiting all intellectual rights associated with the software. Often confused with public domain software is freeware. Freeware is software that may be freely distributed but not modified in any way. The programmer wishes his/her creation to see maximum distribution at no cost to its users, but he/she also wishes to retain full intellectual property rights for the program. What is happening here is a mandatory license agreement between the copyright owner and the user. The programmer retains full copyrights, except for those rights expressly granted to licensees, those persons who obtain the software. Next up the line is shareware. In fact, the only difference between shareware and freeware is that among the conditions stated in the programmer-written user license agreement is the demand that a certain amount of money be sent to the author. In markets too small to support more than a few commercial software developers, this can be an effective way to market software for a small profit. At the top of the hierarchy is commercial software. This bracket includes all software that must be paid-for by the user at the time of acquisition. As briefly discussed above, commercial software may be further divided into software sold to users and software licensed to users. A user who has purchased a copy of commercial software has not purchased the copyrights in any way, and may not violate any of the seven rights which remain exclusively held by the copyright owner. Licensed software, on the other hand, is software where only a few rights are explicitly granted by the copyright owner to the user. The user has purchased nothing but the license agreement, and is usually required to return the copy of the software to the owner when the terms of the agreement are violated. Such agreements are usually imposed by the developer to further limit the rights of the user beyond those granted by copyright law. A Different Grouping Thus, in addition to categorizing computer software by the amount of payment required, it may also be useful to group all copyrighted software into these two categories: 1) Purchasable commercial software, where ownership of the copy, but not the copyright, is transferred, and 2) Licensed software, which includes freeware, shareware, and the rest of commercial software, where ownership remains with the copyright holder. Users of purchased commercial software must abide by copyright law, while users of licensed software must abide by both copyright law and the license agreements beyond copyright law. Unanswered Questions, Speculative Answers A variety of questions remain unanswered by this research. Clearly no copyrights have expired for computer software created since 1978, but what if a commercial program is no longer commercially available? What if the commercial developer has long since disappeared into bankruptcy? Agreements can be made between the programmer and employer in this case so that copyrights revert to the author, but this does not seem to be the default course of events. Is it legal to obtain pirated copies of commercial software if the developer no longer exists? What if the vendor exists but has long since lost interest in the product? Legalities aside, does one have a right to pirated software that is unavailable legitimately? These are traditionally very controversial questions, but unfortunately they are questions not answered here. Bibliography  Bertolucci, J. "Software Licensing: Still a Jungle." PC World, September 1992, p. 89.  Brodie, Bob (Atari Director of Communications). An e-mail message dated November 19, 1993.  Ibid. An e-mail message dated November 20, 1993.  Carrol, Terry. "Frequently Asked Questions About Copyright (V. 1.1.1). Posted to the Usenet group misc.legal.computing on October 27, 1993.  Chris (Sierra On-Line Tech Support). An e-mail message dated November 19, 1993.  Cooper, Frederick L. Law and the Software Marketer. Englewood Cliffs, N.J.: Prentice Hall, 1988.  Greguras, Fred and Gary Reback and Joel Riff. "Software's Legal Protection Around the World." Information Strategy, Fall 1990, p. 23.  Hamilton, D. P. "Can Electronic Property Be Protected?" Science, July 5, 1991, p. 23.  A Legal Guide for the Software Developer. Minnesota Department of Trade and Economic Development, 1989.  Levy, S. "The Rap on Software Piracy." MacWorld, January 1993, p. 57.  McGrath, William T. "Who Owns the Copyrights?" Byte, April 1990, pp. 269-71.  Miller, Joel. "Software Copyrights: Searching for the Golden Nugget." IEEE Spectrum, January 1993, p. 20.  Morin, Richard. "The Meaning of Freeware." UNIX Review, December 1993, pp. 101-102.  Simon, David F. Computer Law Handbook: Software Protection, Contracts, Litigation, Forms. Philadelphia: American Law Institute-American Bar Association, 1990.  Volk, William (Activision VP Technology). An e-mail message dated November 18, 1993.  Weber, Robert. "Copyright in the Electronic Age." Publishers Weekly, March 22, 1991, pp. 52-3.  Webster, George D. "Hard Rules for Software Copyright." Association Management, August 1991, pp. 108-9.  Weisband, Suzanne P., and Seymour E. Goodman. "International Software Piracy." Computer, November 1992, pp. 87-90. -- Michael Current, Keeper of the 8-Bit Atari FAQ & Vendor/Developer Lists Cleveland Free-Net Atari SIGOp: aa700 / mailto::firstname.lastname@example.org
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