Introduction

Software development over the last decades represents a pace of change not seen since the
Industrial Revolution. Software is pervasive, affecting virtually every aspect of human life in all
parts of the world. From the perspective of intellectual property rights (IPRs), discourse and debate
focuses not only on how software should be protected, but also on a myriad of issues reflecting the
many roles that software plays in digital distribution of creative content. This paper summarizes
some of those issues, and provides information on current activities of WIPO that address them.

The three goals of computer security, namely secrecy, integrity, and availability, are most commonly
achieved through physical and electronic measures. However, laws also exist whose intent is to
protect the secrecy, integrity, and availability of computer hardware, software, and data. The laws
referred to here which govern computer security fall under the domain of intellectual property.
Unfortunately, current domestic laws governing intellectual property as they relate specifically to
computer security and computer software lag far behind the technology these laws are intended to
protect. Most notably glaring is the fact that domestic laws are more timely than many of the
foreign counterparts.Advances have been and continue to be made in the creation of required
legislation and in the prosecution of criminal offenders, but the battle is just beginning. In order for
any progress to be made in this area of the law, the justice system will be obliged to change from a
reactive mindset to a proactive mindset.

Copyright in computer software, although now considered a legal certainty, faces growing
opposition in a world of broadband Internet connections and removable mass data storage media.
The worldwide losses resulting from illegitimate copying were estimated at US$10.97 billion in
20011, and the Software & Information Industry Association (SIIA) warns of a “serious potential
threat to the intellectual property providers”, stating that “hundreds of software and information
companies lay off workers and cut back product lines”2 as a consequence of software piracy.
Microsoft3 claims that some 10,000 jobs were lost in the District of Columbia and neighbouring
states alone as a result of software piracy in 1997.

The industrial reaction to such statistics has been to hold them up to emphasize the need for far-
reaching legal protection of computer software – in society’s own interests. However, this attitude

1
Data from the Business Software Alliance, released on 10th June 2002, quoted in
http://maccentral.macworld.com/news/0206/10.piracy.php
2
SIIA and KPMG, p. 6
3
Data from Microsoft, released on 3rd February 1999,
http://www.microsoft.com/presspass/press/1999/Feb99/DCEIPr.asp

1
suggests that the main difficulty lies in breach of copyright. This article examines the legal and
economic justification of copyright protection in this area with a view to demonstrating that the
attitude described above is too simplistic, and that an altered model of copyright protection may,
after all, be desirable.

Brief History of Copyright Protection of Computer Software

WIPO started to consider the question of the legal protection of computer programs in the 1970s,
and, first, the idea of working out a sui generis system emerged. The sui generis protection covered
all three elements of computer programs: object code, source code and documentation. “Source
code” is the original code of the computer program written in program languages which can be read
and understood by human beings, particularly those who are specialized in this field; “object code”
is a version of the program that is directly usable by a computer, in binary form – a series of “zeros”
and “ones” – that computer processors may understand, but human beings cannot unless it is
“decompiled”, that is transformed into source code. However, the WIPO Model Provisions on the
Protection of Computer Programs which provided for a sui generis system were not followed by
national legislators, and the idea began to prevail that copyright should be applied for the protection
of computer programs. In February 1985, WIPO and UNESCO convened in Geneva a joint Group
of Experts on the Copyright Aspects of the Protection of Computer Programs. At this meeting, on
the basis of a thorough study1 and an animated debate, a breakthrough took place towards the
recognition of computer programs4.
National laws which already contained provisions on the copyright protection of computer
programs, in general, granted the same kind of protection as for other categories of works. It is
another matter that they also included certain “genre-specific” provisions, such as special
exceptions for the making of back-up copies or for “decompilation” of programs in order to create
other, interoperable programs. There were, however, still some countries which, although they were
ready to keep computer programs within the general copyright paradigm, wanted to apply a regime
which were similar to the protection of the borderline category of works of applied arts/industrial
designs (with shorter term of protection and with the possibility of applying material reciprocity).
There were then two developments which completed, at the level of binding regional and
international norms, what had been worked out at the WIPO forums in the form of a “soft law”
model: first, the publication, in July 1991, of the Computer Programs Directive of the European

4
As the study presented it, at that time, there were still only five countries – in chronological order: the Philippines, the
United States of America, Hungary, Australia and India – which had provided in their statutory law on copyright
protection of computer programs. After the February 1985 meeting, in May, June and July, within less than two months,
for example, the following four countries recognized, in their statutory law, such protection (in chronological order):
Germany, May 23; Japan, June 14; France, July 3; and United Kingdom, July 16. (This is also a good example of how
the “guided development” period contributed to the harmonization of copyright laws).

2
Community and the adoption, in April 1994, of the TRIPS Agreement, both of which clarified that
computer programs should be protected as literary works under of the Berne Convention. Article 10
of The TRIPS Agreement contains an interpretive provision stating that computer programs,
whether in source or object code, shall be protected by the Berne Convention. Article 4 of the 1996
WIPO Copyright Treaty (WCT) includes the same clarification in very similar terms. There are very
few voices today that argue against copyright protection of computer programs. Computer programs
are not “merely” technical solutions, even if software developers are sometimes considered as
“outsiders” by other, more traditional creators in the musical or literary fields. Indeed software itself
is not just a technical result, but an author’s creation which has a technical character. The only
difference is the “active” nature of the computer program, meaning that it has technical (physical)
effects in computer hardware during its operation. But this is not a reason for the exclusion of
software – as a creative, original expression – from copyright protection.

INTELLECTUAL PROPERTY AND COMPUTER SOFTWARE

There are intellectual property issues associated with four elements of a software program:
1. Program function - whether the algorithm is performed by the hardware or the software,
2. External design - the conventions for communication between the program and the user or other
programs,
3. User interfaces - the interactions between the program and the user,
4. Program code - the implementation of the function and external design of the program.
Whether and to what extent software-related inventions are the subject of utility patent protection
had been an issue for consideration by the courts since the early 1960s. The U.S. Supreme Court has
examined the issue of patentability of software on a number of occasions, in the cases of Gottschalk
v. Benson, Parker v. Flook, and Diamond v. Diehr attempting to delineate the limits of patentable
subject matter with respect to “mathematical algorithms.” The scope of copyright protection for
computer programs depends in part on the interpretation of Section 102(b) of the Copyright Act.
There are a number of existing views of the application of existing law to user interfaces. One
interpretation of the law is that user interfaces are inherently functional and therefore not
copyrightable subject matter. The other view is that user interfaces may be protected by copyright
because they could be thought to fall under the compilations or audio-visual works. Another
approach to protecting user interfaces through copyright law is to consider the user interface as part
of the program itself5.
5
INTELLECTUAL PROPERTY RIGHTS AND COMPUTER SOFTWARE
Dawn E. Bowman ,DawnSheree@AOL.COM

3
 In April 1991, the Supreme Court “dropped a bomb” when it held in Feist Publications Inc. v
Rural Telephone Service Company, Inc. that the white pages of a typical telephone directory were
not copyrightable. The decision sent shockwaves throughout the computer industry because of the
questions it raised about copyright protection for other fact-based compilations, such as computer
databases. The Supreme Court effectively reaffirmed that copyright originality requires a minimum
level of human creativity which some databases may not meet6.

As is the case for all literary works, a computer program must be original to obtain copyright
protection, i.e. it must originate with the author and there must have been “a modest amount of skill,
labour or judgment”7 involved in its creation. This will, on the whole, not be problematic – most
programs for which copyright protection is claimed in court are more than a few lines long8 and will
invariably satisfy such requirements. The one exception is where a program’s expression is the
inevitable result of its function9 – that is to say, where the program could not have found any other
expression given the task it was to perform. This is generally only likely to be the case for
microcode written as an instruction set for a particular chip, if at all.

Establishing that copyright subsists in a computer program will therefore not be an onerous task.
When a program has been copied, however, has proven rather more difficult to discern, and it is
helpful at this stage to consider what software actually comprises of.

However, common sense prevailed as it was recognized that failure to protect object code would
negate the entire principle of copyright protection in software, since most programs are generally
made available in object code form. Where doubts still persist as to whether object code should be
classed as “literary”, it will be considered an adaptation (see below).

Preparatory works such as charts and written specifications are protected as literary works in their
own right (s3(1)(c))10, provided they satisfy the tests of originality and de minimis. Thanks to the

6
Patent Trademark and Copyright Journal 18 Apr. 1991.
7
Bainbridge, Introduction to Computer Law, p. 25
8
Bainbridge notes (Software Copyright Law, p. 47) that the programming language used may indicate the degree of
skill and effort required in the writing of the program – BASIC programs are undoubtedly easier to write than those
written in Assembler. However, this is probably of little or no practical consequence, given the observation concerning
who is likely to litigate.
9
See Kenrick & Co v Lawrence & Co (1890) 25 QBD 99
10
It is therefore arguable that such material should not be included in a definition of “software”. However, the EEC
Directive which prompted the Copyright (Computer Programs) Regulations 1992 states that “computer programs shall
include their preparatory design material” (Bainbridge, Software Copyright Law, p. 51). The wording of the amended
Act in fact gives design material copyright protection of its own, separate from the protection afforded to computer
programs. Nevertheless, many writers include preparatory design material in the definition of software, and this course
will be followed here.

4
possibility of indirect copying (see below), there is a possibility of infringing the copyright in such
works when copying the program itself.

Software further includes databases11 and “all manner of works stored digitally to be accessed by
computer and associated printed documentation such as manuals for users.”12 Software suites are
protected as compilations under s3(1)(a)13.

Infringing acts

Smedinghoff14 identifies five main forms of copyright infringement – copying, adaptations and
modifications, distribution, public performance or display and the use of work in excess of license
rights. Each of these will be considered.

Literal copying is the classic case in which the defendant makes an exact, byte-for-byte copy of the
plaintiff’s software without the latter’s consent15. “Software piracy” is usually a reference to this
form of infringement, and, once proved, will lead to sentencing. This is not a difficult issue in the
case of object code. The issue becomes more contentious when the defendant copies parts of the
plaintiff’s source code in writing their own program, because the court must then decide whether
the part(s) copied represent a substantial part of the copied program. The test is qualitative 16 – is the
copied part important to the operation of the copied program as a whole, giving consideration to the
labour and skill expended by the original programmer in writing it? Back-up copies are not affected
by this prohibition17 – provided they are actually necessary18.

11
According to Bainbridge, Introduction to Computer Law, p. 24 – as in the case of preparatory material, the protection
afforded is separate and not directly linked to the existence of a program. A wide view of “software” is generally taken,
however, such that it need not merely include executable binary files, but might include data files and databases.
12
Bainbridge, Introduction to Computer Law, p. 24 – however, this takes the definition of software too far. There are no
reasonable grounds for including printed documentation in this category, since this is a literary work in its own right.
13
Established in IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275
14
Smedinghoff, pp. 67-68
15
s50C Copyright, Designs and Patents Act 1988 provides that a lawful user (as defined in s50A(2) – usually one who
has been granted a licence) may copy or adapt (see below) a program where it is for their own lawful use and where
there is no agreement with the copyright owner to the contrary (which there often will be). It might therefore be more
accurate to say that literal copying is prohibited where there is neither implied (i.e. no provision to the contrary in the
licence agreement) nor explicit consent.
16
See Cantor Fitzgerald International v Tradition (UK) Ltd, The Times, 19th May 1999
17
s50A Copyright, Designs and Patents Act 1988
18
What constitutes “necessity” is not always apparent. Where a back-up copy is supplied by the copyright owner, a
further copy will not be allowed, and the same applies where a further copy of the program will be provided as part of
the licence terms should the original copy fail.

5
While Smedinghoff considers the use of a work in excess of license rights a separate infringement,
it is in fact a form of unauthorized literal copying in which the defendant makes more copies of a
piece of software than the license they have been granted allows.

Non-literal copying concerns situations in which the “structure, flow and sequence of operations” 19,
rather than the actual program code, is copied without consent. This primarily concerns the
distinction between ideas (which copyright does not protect) and their expression (which it does).
Most of the debate on this issue has taken place in U.S. cases, discussed below, whose decisions
were embraced in the U.K. in John Richardson Computers Ltd v Flanders20.

Computer programs may not be “translated” 21 without permission, that is to say, source code may
not be compiled22 to create object code, and object code may not be decompiled to create source
code. Such a translation constitutes an adaptation 23, as does the rewriting of the source code in a
different programming language24. The latter case is difficult to justify – it is generally not possible
to convert a computer program on a line by line basis unless the programming languages are
extremely similar. It is far more likely that the programmer will be required to consider the
mechanisms and concepts by which particular goals are achieved and then attempt to implement
them in what may be a very different manner. Clearly anyone doing this will have the advantage
that the first programmer has already worked out how to achieve the overall goal, e.g. word
processing – yet that by no means indicates that the second programmer will have an easy task – it
is possible that the conversion will take as long as the writing of the original program. In that case,
has the second programmer really gained at the other’s expense?

There is an exception in the area of adaptations, namely where a programmer wishes to decompile
another program’s object code in order to write a program which can interact with it. This may not
be a requirement where it is merely a matter of making files compatible with both programs 25, but
where it is necessary for one program to exchange data directly with another, it may be important to
19
Bainbridge, Introduction to Computer Law, p. 32
20
John Richardson Computers Ltd v Flanders [1993] FSR 497
21
S21(4) Copyright, Designs and Patents Act 1988: “In relation to a computer program a “translation” includes a
version of the program in which it is converted into or out of a computer language or code or into a different computer
language or code”
22
The words “compile” and “decompile” only apply to so-called “high-level programming languages” such as BASIC
and C++, which are generally easier to program in than Assembler, which is somewhat closer to “machine language”,
i.e. the system of 1s and 0s mentioned above. Programs written in Assembler are “assembled” and “disassembled”.
23
Since adapted code is protected by copyright, object code – being an adaptation of the source code – is also protected,
even if it is not a literary work.
24
Bainbridge, Introduction to Computer Law, pp. 42-43
25
e.g. Microsoft Word can read documents created using Corel’s WordPerfect word processor – in this case, a
programmer may be able to establish how a document functions merely by examining the document itself, rather than
the code used to create it.

6
know how the first program deals with such data. S50B(1) CDPA 1988 expressly provides that this
will not constitute an infringement, provided that the person decompiling is a lawful user.

Where software has been put into circulation legitimately, its further distribution will not infringe
the owner’s copyright, with the exception of where software is made available for rental 26. In
essence, this means that once software has been made publically available, it can be resold by a
third party. Bainbridge27 makes the point that this may be particularly attractive where software is
sold more cheaply in one country than the other, enabling a third party to buy cheaply in the one
and sell at a lower price than the original distributor in the other.

Public performance or display of is in practice less of an issue in relation to software than it is in

relation to, for example, music. Infringement occurs where a program’s display is made accessible
“to a number of persons simultaneously”28. This might occur in the context of a university lecture, a
gaming convention or the like – but prosecution in this area is rare. It may be avoided by obtaining
the copyright owner’s consent.

Protection of Software under the WIPO Copyright Treaty

Article 4 of the WCT states that computer programs are protected as literary works within the
meaning of Article 2 of the Berne Convention. Such protection applies to computer programs,
whatever may be the mode or form of their expression. In an agreed statement it also clarifies that
the scope of protection for computer programs under Article 4 of this Treaty is consistent with the
Berne Convention and on par with the relevant provisions of the TRIPS Agreement. The WCT does

26
Rental will require a term in the licence which specifically allows it.
27
Bainbridge, Software Copyright Law, p. 59
28
Bainbridge, Software Copyright Law, p. 60

7
not contain any definition of “computer program”. In the course of the preparatory work of the
Treaty, it was agreed upon that the definition of “computer program” adopted as part of the WIPO
Model Provisions on the Protection of Computer Programs was still valid. This definition reads as
follows: “’computer program’ means a set of instructions capable, when incorporated in a machine-
readable medium, of causing a machine having information-processing capabilities to indicate,
perform or achieve a particular function, task or result”. Definitions of “computer programs”
included in national laws, are, in general, in harmony with the basic substantive elements of the
above-quoted definition in the Model Provisions29.
However, sometimes a broader definition of “computer program” is used which also includes the
preliminary material for the creation of a program. For example, Article 1.1 of the Computer
Programs Directive of the European Community30 provides that “for the purpose of this Directive,
the term ‘computer programs’ shall include their preparatory design material”. One of the recitals of
the Directive indicates what is meant by the notion of preparatory material; it reads as follows:
“Whereas, for the purpose of this Directive, the term 'computer program' shall include programs in
any form, including those which are incorporated into hardware; whereas this term also includes
preparatory design work leading to the development of a computer program provided that the nature
of the preparatory work is such that a computer program can result from it at a later stage.” It should
be emphasised that the preparatory material the way it is understood, for example, in the Computer
Programs Directive is not covered by the concept of “computer program” proper. This is so since
such preparatory material cannot be regarded yet as a set of instructions the purpose of which is to
cause a computer to execute a particular task or function; it is only a basis for the creation of such
set of instructions in a later stage. This means that, although national laws may extend the definition
of “computer program” to such preparatory material, under Article 4 of the WCT (as well as under
Article 10.1 of the TRIPS Agreement which also only speaks about computer programs) this is not
an obligation. It is another matter that such preparatory material also may, and in general do,
deserve copyright protection, as such, in accordance with the general provisions on literary and
artistic works.
Article 4 of the WCT can be understood as an adapted version of the clarification included in the
TRIPS Agreement regarding computer programs. Article 10.1 of the TRIPS Agreement provides as
follows: “Computer programs, whether in source or object code, shall be protected as literary works
under the Berne Convention (1971)’. The question may emerge: why this provision speaks about
the forms of computer programs - - source code and object code -- when, under Article 2(1) of the
29
For example, Section 101 of the U.S. Copyright Act defines “computer program” as “a set of statements or
instructions to be used directly or indirectly in a computer in order to bring about a certain result”. Article 2(xbis) of the
Japanese Copyright Law contains a similar, simple and general definition, according to which a “‘[computer] program’
means an expression of combined instructions given to a computer so as to make it function and obtain a certain result.”
30
Council Directive of 14 May 1991 on the legal protection of computer programs.

8
Berne Convention, a literary or artistic work is protected “whatever may be the form or mode of its
expression”. The reason seems to be that this was necessary in order to reject certain unfounded
views that computer programs may only be protected by copyright as literary works as long as they
are in source code, and that programs in object code, due to the utilitarian purpose of programs in
such code, are not protected (this position was wrong, not only because the Berne Convention, in
general, does not allow exclusion of works from copyright protection just because they serve
utilitarian purposes, but also because it had neglected that programs may be decompiled from object
code into source code).
The agreed statement concerning Article 4 WCT was adopted at the request of some delegations,
mainly from developing countries, which wanted to make sure that the scope of application of the
protection of computer programs under Article 4 does not change – and, in particular, that it is not
extended – in comparison with what is provided in Article 10.1 of the TRIPS Agreement. This has
been found necessary due to the fact that the text of Article 10.1 of the TRIPS Agreement and that
of Article 4 of the WCT are not identical. The former speaks about “computer programs, whether in
source code or object code”, while the latter about “computer programs, whatever may be the mode
or form of their expression”. The latter text seems more appropriate since it is the one which
corresponds to the provisions of Article 2(1) of the Berne Convention (from where the expression
“whatever may be the mode or form of their expression” has been taken word by word). It seems
also more appropriate considering the possibility that, in the future, the source code/object code
categorization might become obsolete.
The TRIPS Agreement
The General Agreement on Tariffs and Trade (“GATT”) has also addressed copyright issues, in
parallel to WIPO. The goal of the GATT is to “promote the reduction of tariff barriers to the
international movement of goods.” The GATT has been updated and revised regularly in the course
of multinational discussions (“Rounds”). As copyright was becoming increasingly important in
shaping international trade with the advent of the information society, the 1994 Uruguay Round of
GATT produced TRIPS – the Agreement on Trade-Related Aspects of Intellectual Property Rights.
The same Round also instituted the World Trade Organization (WTO). The TRIPS Agreement
adopts portions of the Bern, Rome and Paris Conventions in enunciating norms for intellectual
property laws. Article 9.1 of TRIPS Agreement provides that, “Members shall comply with Articles
1 through 21 of the Bern Convention (1971) and the Appendix thereto. However, Members shall not
have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of
that Convention or of the rights derived there from.” So it is clear that the approach taken in the
copyright provisions of the TRIPS Agreement is to adopt the regime of copyright protection provided in
the Bern Convention. Article 10.1 provides that, “Computer programs, whether in source or object code,

9
shall be protected as literary works under the Bern Convention.” Article 10.2 further provides that, “
Compilation 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 shall be protected as
such.”

India:
In India, the Intellectual Property Rights (IPR) of computer software is covered under the Copyright
Law. Accordingly, the copyright of computer software is protected under the provisions of Indian
Copyright Act 1957. Major changes to Indian Copyright Law were introduced in 1994 and came
into effect from 10 May 1995. These changes or amendments made the Indian Copyright law one of
the toughest in the world. The amendments to the Copyright Act introduced in June 1994 were, in
themselves, a landmark in the India's copyright arena. For the first time in India, the Copyright Law
clearly explained:
• The rights of a copyright holder
• Position on rentals of software
• The rights of the user to make backup copies
Since most software is easy to duplicate, and the copy is usually as good as original, the
Copyright Act was needed. Some of the key aspects of the law are:
 According to Section 1431 of this Act, it is illegal to make or distribute copies of
copyrighted software without proper or specific authorization.
 The violator can be tried under both civil and criminal law.
 A civil and criminal action may be instituted for injunction, actual damages (including
violator's profits) or statutory damages per infringement etc.
 Heavy punishment and fines for infringement of software copyright.
 Section 63 B stipulates a minimum jail term of 7 days, which can be extended up to 3
years.
Section 2(ffb) provides that:
"Computer" includes any electronic or similar device having information processing capabilities.
Section 2(ffc) defines:
"Computer program" means set of instructions expressed in words, codes, schemes or in any other
form, including a machine- readable medium, capable of causing a computer to perform a particular
task or achieve a particular result.
Section 2(o) provides that:
"Literary work" includes computer programs, tables and compilations including computer database.

31
Indian Copyright Act, 1957

10
The aim of copyright protection for software

It has already been noted above32 that the aim of copyright protection for software is an important
element in the consideration of non-literal copying, and it is worth investigating more fully.

Kindermann considers the aim of any system of protection to be the provision of “an environment
that allows recovery of program package development investment so as to permit further
reinvestment.”33 There is an inherent logic in this approach – in a capitalist economy, survival of an
entrepreneur is only guaranteed where sufficient income is generated to cover necessary expenses,
and is thus desirable. The greatest danger to the software publisher in this respect is software piracy
– if too few consumers pay for the program they have acquired, the publisher will not receive
sufficient income to cover their costs34.

In Whelan, it was suggested that copyright was a reward for “sweat of the brow.” Karjala 35 rejects
the idea of copyright as an incentive system on the grounds that computer software is a technology,
and thus utilitarian in nature. Technology is otherwise protected by patent and – in theory – only
where significant advances have been made36. Patents are thus an incentive system and a system of
reward – copyright, which arises upon creation, regardless of the degree of creativity involved, is
not. The reason why copyright has been chosen to protect software is the comparative ease with

32
See Fn. 48
33
Kindermann in Brett and Perry, p. 140
34
That, at least, is the bottom line. Others may argue that maximization of profit is desirable, but desire does not equate
to necessity. Maximization of profit is not a requisite for market survival.
35
Karjala, p. 196
36
As illustrated by the requirement of non-obviousness in patent registration.

11
which object and source code is reproduced, unlike other items of technology, and the need,
therefore, for immediate legal protection.

While software is utilitarian, the classic recipients of copyright protection (music, art and literature)
are made valuable by their aesthetic content or the information they convey. Karjala 37 argues that
variety is therefore desirable – there is no social benefit in copying another’s novel, only to make
minor alterations or to change names. Whether this is true or not, it is plain that variety is not
necessarily desirable in software. Utility is not automatically increased by the fact that a task is
completed in one out of a range of possible ways38, especially when the number of ways available is
limited. Software should therefore be seen as being similar to “works descriptive of technology,
rulebooks, histories or legal forms, in which the scope of protection is ‘thin’.” 39 This point of view
stands in conflict with the approach of the courts in Whelan and Computer Associates, where it was
thought that the existence of a variety of expressions meant that the one chosen was protected. In
the light of Karjala’s argument, it appears that the courts’ approach – while based on the theory
underlying copyright in the “classic” recipients – failed to take into account the utilitarian nature of
software40.

It is apparent, then, that the aim of copyright is solely to protect against piracy 41, thus to prevent
inflicted loss42 leading to market exclusion. With this knowledge, it is possible to consider the actual
measures required to make copyright effective.

The mechanisms of software copyright protection

It was considered that lawful users of software should be allowed to make their own adaptations 43 –
that is to say, to alter the way in which software works to accord with their needs. However, such
adaptations should not be passed on to third parties without the copyright owner’s authorization. It
is clear that the latter would effectively be piracy causing loss to the copyright owner – unless the
first user merely passed on a program which altered the program code to implement the adaptations,

37
Karjala, p. 196
38
Unlike aesthetic value, which is increased by variety, according to Karjala.
39
Karjala, p. 196
40
Karjala explains later (p. 198) that software is only literary in terms of its form – it is, for all practical purposes,
actually functional.
41
For a more in-depth argument in favour of a sui generis form of protection for software, rather than copyright, see
Samuelson, Davis, Kapor, Reichmann.
42
“Inflicted loss” is used to distinguish between losses caused by the publisher’s own actions and losses caused by
piracy over which the publisher has no influence.
43
Final Report of the CONTU at 30.

12
rather than passing on an adapted version of the adapted program code itself 44. The actual act of
alteration causes no loss and should not be prohibited.

It is plain that the main concern of the CONTU Report was the act of literal copying – “one is
always free to make the machine do the same thing as it would if it had the copyrighted work placed
on it, but only by one’s own creative effort rather than by piracy.” 45 Dietz confirms this in his
commentary on the Report – “[copyright] should not… prevent others from contributing to the
development of the art, and grant no more economic power than necessary to the developer.”46

Given that the performance or display of the output of a piece of software is merely transient, it
seems impossible to argue some form of “fixation.” Unlike music, the software’s benefit does not
lie in its very existence but in the functions it performs – hence the need to protect the code rather
than what the code does. It also seems inconceivable that the public display of a piece of software,
or the software’s output, should cause the copyright to suffer economic loss.

Copyright protection and reality

One final issue must be raised in relation to the aim of copyright – the economic aspect. In a
capitalist society, it is generally unavoidable that a company should seek to maintain or increase its
share of the market and its profit. Failure to do so would be to increase the risk of dropping out of
the market. However, as mentioned at the beginning of this article, software piracy is becoming an
ever-increasing challenge, and software companies now face an uncertain future. Encryption
mechanisms are being routinely circumvented and software being made available via the Internet
before it even enters the market.

In addition to this, a considerable volume of open source and otherwise freely available software of
professional quality is being made available by programmers around the world. The “free software”
movement provides licensing conditions somewhat more favourable to consumers than most
commercial models47 and has been dubbed a “threat” 48 to software companies.

44
There is, of course, the argument that the copyright owner might have intended to implement such adaptations in
future versions of their program, but this is rather far-fetched and begs the question of why it was not done in the first
place. To inhibit another on the basis that one might have been going to do the same thing in the future is patently
absurd.
45
Final Report of the CONTU at 52.
46
Dietz in Brett and Perry, p. 120
47
Rights under the GNU Public License include access to the program’s source code, redistribution of copies, and the
right to create adaptations and distribute them.
48
See http://www.eweek.com/article2/0,3959,857673,00.asp

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The result is that there is increasing pressure on commercial companies to reconsider their business
strategy if they are to remain in the market. Whether the reduction of prices and the resulting short
term decreases in profit are an adequate manner of tackling the situation remains to be seen, but it
has certainly been suggested that this will be necessary 49. There may indeed therefore be a shift
towards Dietz’s model of economic purpose, albeit an involuntary one. The question therefore
arises as to whether copyright will also change to reflect current reality 50 – a law which cannot be
upheld has questionable status51.

Conclusion

Ironically, the areas least affected by the increasing illegitimate availability of software are the non-
literal program elements. It may be easier to gain access to software in order to reverse engineer it,
but the substantial effort required to do so and to write a program which is not literally the same
remains as it has always been. It seems likely, therefore, that copyright in these areas is likely to
endure – it is, however, not justified.

49
“Microsoft Corp. may in the future be forced to lower its software prices as a result of the growth of open source, the
company cautioned in its latest filing with the Securities and Exchange Commission” –
http://www.eweek.com/article2/0,3959,857673,00.asp
50
The Digital Millennium Copyright Act 1998 and European Union Copyright Directive (2001/29/EC) do, however,
indicate that further restrictions may be imposed in the name of copyright protection.
51
Hart suggests that the truth in rules is a matter of social acceptance – if this is so, law must, and in the long term will,
reflect social attitude. A rule protecting unnecessarily expensive software must conflict with consumers rapidly
becoming accustomed to the idea of freely available software. This is not to say that the rule of force, as it might be
considered in this case, is necessarily desirable, but that if rules reflect social standards, then they will necessarily adapt
accordingly.

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