Software: Copyright versus patent, America versus Europe. Opinion is divided, debate is rampant. How can we best protect computer programmes?
This hot issue is burning a path across the globe causing uproar in courtrooms and mayhem for legislators and lawyers alike. It is the topic par excellence, highlighting how the law must keep up with evolving technologies.
Copyright was initially descended upon as the perfect ready-to-use tool for the protection of rights in computer programmes. This meant an acceptance that the code underlying software is a literary work bringing with it all the perks copyright provides, such as no need for registration, protection against unauthorised copying and distribution, and a term lasting the life of the author plus 70 years following the author's death. However, putting something as functional as a computer programme on a par with literary works by the greatest poets and authors of our time is frowned upon by many since software is seen as a means of operating a machine.
The EU legislated in this regard in a 1991 directive giving direction to all member states to extend copyright protection to software. The US too protects software with copyright. However, as can be expected, different criteria are applied.
The greatest controversy relates to the handling of non literal copying - that is, for example, when the structure of the programme is copied rather than the code verbatim. This is a difficult issue spawning many approaches adopted in different jurisdictions; from tests as to the "look and feel" of alleged copies, to tests which filter away all surplus features in computer programmes so as to look at their core. The difficulty is that as a fundamental rule of copyright it is not ideas that are protected, but their expression. Therefore, how much can you strip away before being left with just the idea? This has led to the approach favoured in the UK which focuses on whether the part copied was a substantial part of the software - where substantial can be qualitative as well as quantitative.
Not satisfied with copyright protection for software, patent law has been proposed as the solution du jour. Patents exist for inventions, they protect functional works. This, therefore, ought to solve the complaints vis-à-vis copyright. However, software has failed tests in the patent department too. Patent law lays down strict criteria: inventions must be novel, have inventive step and be capable of industrial application. Of the latter we have no doubt - just think of the mountains of software packages churned out by Microsoft every day, that's industrial application for you. Novelty and inventive step are slightly trickier. Unlike copyright which allows similar works produced independently of each other to co-exist, patent law is not as lenient.
In Europe, the European Patent Convention, an extra-EU body dedicated to patent law, specifically dictates that computer programmes as such cannot be granted patent protection in any of the Convention's member states. Malta is one of them. That would seem to have closed the door and put a lid on the matter of "patents-for-software" but in the US a series of cases, culminating in the landmark State Street Bank case of 1998, changed the boundaries of patent law as we know it. What were by international consensus formerly non-patentable works, (such as methods of doing business), these were suddenly allowed to be patented, giving software the possibility to get its foot in the patent door.
So far, this only happened States-side. Europe has been very wary of taking this giant leap. Therefore, one can patent software (which is not as easy as it sounds) in America but not in Europe. Plans for a European Directive allowing patents for software failed in 2005 when the European Parliament rejected the proposal. A serious imbalance was created with Europe facing a real competitive disadvantage from America, and putting a damper on reaching the Lisbon goal to make the EU "the most competitive and dynamic knowledge-based economy by 2010".
Due to the failure of establishing a harmonised standard on the patentability of computer-implemented inventions, different interpretation as to what is patentable will continue to exist in the EU. Courts in individual member states find creative ways of allowing software patents to be granted. Examining the many theories and ramifications would be too much to handle this Thursday morning. Suffice it to say that the theories are diverse and vary from "seemingly possible" to "mind-boggling".
The Small Business Act for Europe proposes to create an EU-wide patent law, possibly introducing patent protection for software. But what about shelving all this and going for a new, tailor-made solution? Subjects like databases and semiconductor topographies were given new sui generis rules created specifically for them; should this be done for software too, and put an end to the inconsistencies?
• Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates.
This hot issue is burning a path across the globe causing uproar in courtrooms and mayhem for legislators and lawyers alike. It is the topic par excellence, highlighting how the law must keep up with evolving technologies.
Copyright was initially descended upon as the perfect ready-to-use tool for the protection of rights in computer programmes. This meant an acceptance that the code underlying software is a literary work bringing with it all the perks copyright provides, such as no need for registration, protection against unauthorised copying and distribution, and a term lasting the life of the author plus 70 years following the author's death. However, putting something as functional as a computer programme on a par with literary works by the greatest poets and authors of our time is frowned upon by many since software is seen as a means of operating a machine.
The EU legislated in this regard in a 1991 directive giving direction to all member states to extend copyright protection to software. The US too protects software with copyright. However, as can be expected, different criteria are applied.
The greatest controversy relates to the handling of non literal copying - that is, for example, when the structure of the programme is copied rather than the code verbatim. This is a difficult issue spawning many approaches adopted in different jurisdictions; from tests as to the "look and feel" of alleged copies, to tests which filter away all surplus features in computer programmes so as to look at their core. The difficulty is that as a fundamental rule of copyright it is not ideas that are protected, but their expression. Therefore, how much can you strip away before being left with just the idea? This has led to the approach favoured in the UK which focuses on whether the part copied was a substantial part of the software - where substantial can be qualitative as well as quantitative.
Not satisfied with copyright protection for software, patent law has been proposed as the solution du jour. Patents exist for inventions, they protect functional works. This, therefore, ought to solve the complaints vis-à-vis copyright. However, software has failed tests in the patent department too. Patent law lays down strict criteria: inventions must be novel, have inventive step and be capable of industrial application. Of the latter we have no doubt - just think of the mountains of software packages churned out by Microsoft every day, that's industrial application for you. Novelty and inventive step are slightly trickier. Unlike copyright which allows similar works produced independently of each other to co-exist, patent law is not as lenient.
In Europe, the European Patent Convention, an extra-EU body dedicated to patent law, specifically dictates that computer programmes as such cannot be granted patent protection in any of the Convention's member states. Malta is one of them. That would seem to have closed the door and put a lid on the matter of "patents-for-software" but in the US a series of cases, culminating in the landmark State Street Bank case of 1998, changed the boundaries of patent law as we know it. What were by international consensus formerly non-patentable works, (such as methods of doing business), these were suddenly allowed to be patented, giving software the possibility to get its foot in the patent door.
So far, this only happened States-side. Europe has been very wary of taking this giant leap. Therefore, one can patent software (which is not as easy as it sounds) in America but not in Europe. Plans for a European Directive allowing patents for software failed in 2005 when the European Parliament rejected the proposal. A serious imbalance was created with Europe facing a real competitive disadvantage from America, and putting a damper on reaching the Lisbon goal to make the EU "the most competitive and dynamic knowledge-based economy by 2010".
Due to the failure of establishing a harmonised standard on the patentability of computer-implemented inventions, different interpretation as to what is patentable will continue to exist in the EU. Courts in individual member states find creative ways of allowing software patents to be granted. Examining the many theories and ramifications would be too much to handle this Thursday morning. Suffice it to say that the theories are diverse and vary from "seemingly possible" to "mind-boggling".
The Small Business Act for Europe proposes to create an EU-wide patent law, possibly introducing patent protection for software. But what about shelving all this and going for a new, tailor-made solution? Subjects like databases and semiconductor topographies were given new sui generis rules created specifically for them; should this be done for software too, and put an end to the inconsistencies?
• Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates.