06 May, 2020

The same look, the same purpose of a computer program – copyright infringement or not?

Programming is the creative process of writing a particular set of characters, which, in a certain sequence, is an instruction for a computer to perform a particular action.  In order for the computer to “recognize” the instruction, the programmer must be as detailed and precise as possible when writing the specific instruction.  A computer program consists of a set of instructions and, consequently, a large number of instructions need to be written.

The oldest computer systems were created in the first half of the last century, which were mechanical or electromechanical in type.  In order to introduce a new program or to modify an existing one, if at all possible, it was necessary to connect the electrical relays to a configuration that would fit the job in question.  However, the development of computer systems brought with it major changes in the field of programming.  In this sense, setting up a computer and giving commands to perform tasks no longer required mechanical interconnections of certain circuits, but rather, the writing of the desired instruction.  In order for a programmer to communicate with a computer, he or she must write a manual in a “higher level” programming language, which is further translated into a machine language composed of binary alphabets (zeros and units) using special compiler programs.  Only then can the computer perform the action required of it by the written instruction.

Computer program equals literary work

The relation between a machine language and a high-level programming language can also be observed from the aspect of codes – a code written in machine language is an object code while a code written in a high-level programming language is a source code.

The fusion of technologies behind our computer screens is certainly impressive; however, the position of intellectual property law in this regard makes for compelling reading.

Legislators worldwide are keenly aware of the importance of this kind of technology, and painstaking effort has been put into creating a legal framework to protect computer programs as well as adequate legal norms and rules to provide programmers with legal certainty and encourage further development in this field.  States and groups of states enacted numerous laws and, depending on legal tradition, legislators had various ideas on how to best legislate for this kind of problem.  The foremost instrument in this field is the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) which defines the legal nature of computer programs in Article 10 – computer programs, whether in object or source code, shall be protected as literary works under the Berne Convention.  EU legislators took the same approach to protection.  The first EU instrument which governed the protection of computer programs was Directive 91/250 EC (“Directive”) in 1991.  Eighteen years later, the Directive has been replaced by Directive 2009/24 EC. Article 1(1) of the Directive stipulates that the member states shall protect computer programs by copyright as literary works within the meaning of the Berne Convention.  Having in mind fact that this is a directive, computer programs are protected by copyright in every European Union Member State.

Serbian legislators took all the foregoing into account when providing protections for computer programs under the Copyright and Related Rights Act (“Copyright Act”).  Article 2(2) of the Copyright Act stipulates protection by copyright for literary works, including computer programs in every form of expression (source or object code).

“Noticeable” or “unnoticeable” parts of a program – which ones are relevant?

Let’s be clear, creating a computer program is not child’s play and neither is drafting rules that provide sufficient and effective copyright protection and clear-cut guidelines for courts when hearing computer program copyright infringement disputes.  The question arises whether a computer program should be considered as a whole and therefore, not only the codes and elements known to the programmer, but also elements that interface with the average user, such as, functions or display (interface) of the program.  Is copyright infringement constituted by creating a computer program similar to another computer program from a developer’s point of view or from a user’s point of view?

The Council of the European Communities decided to put expression of a computer program to the fore in Article 1(2) of the Directive, prescribing that copyright protection shall apply to the expression of a computer program in any form.  Contrarily, ideas, methods and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under the Directive.

This would suggest that it is not possible to protect an idea by copyright, the concept that lies at the heart of copyright protection.  But exactly what is an expression of a computer program?

Foreign courts answer…

Case law, both international and national, concerning computer program copyright infringement is hard to come by.  That said, a few cases have left an indelible impression on stances taken by courts concerning the copyright protection of computer programs.

a) United States

In a country which is home to many prominent IT companies, court decisions abound concerning intellectual property disputes.  The judiciary made a concerted effort to interpret norms correctly and create a stable precedent from the very beginning.  Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. was the landmark case in the United States.  The United States Court of Appeals, Third Circuit assumed that the copyright protection goes beyond the protection of the source or executable code and that the protection also includes abstract structure, sequence and organization of a computer program.  The Court ruled that the interface and functionality of a computer program are a form of expression of a computer program and therefore are the subject of copyright protection.

The decision served as a precedent for six years and was replaced by another – the ruling of the United States Court of Appeals for the Second Circuit in Computer Associates Int. Inc. v. Altai Inc case. The Court reasoned that the non-literal aspect of a computer program i.e. interface and functionality of a program could be protected by copyright, but the interface and functionality shall be eligible to copyright or even a patent protection only if they result from original and creative work. Consequently, the interface and functionality of a computer program could be subjects to copyright protection only if they meet the prescribed conditions and regardless of the non-literal aspect of a computer program.  The reason for withdrawal and the essential argument was that the decision in Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. was a serious barrier to creative and inventive thinking and technological development in general.

b) Europe

The European Court of Justice reasoned the same way as the Court which ruled in Computer Associates Int. Inc. v. Altai Inc case.  TheSAS Institute Inc. vs. World Programming Ltd. case was decided in an identical manner  –  the source code and the executive code are the form of expression of a computer program and therefore are protected by copyright under the Directive.  Even more interesting are the grounds for a decision: if an element of a computer program is capable of reproducing a program, that element is subject to copyright protection.  This was a ground for the Court to rule that the functionality, programming language and configuration of files used for achieving certain functions do not establish a form of expression within the meaning of Article 1(2) of the Directive.  The Court also assumed that, if the idea of protection of the functionality of a computer program by copyright was accepted, it would make possible to monopolise ideas in the software industry.

In the Infopaq International A / S Vs. In the Danish Dagblades Forening case, the European Court of Justice interpreted the recognition of authorship if the work is original in the sense that it is the author’s intellectual creation.  The court further explains in the reasoning of the decision that the development of the display requires considerable intellectual effort on the part of the author, as is the case with a literary or musical work.  Behind the graphical user interface is a complex structure developed by the developer.  It uses a programming language that, structured in a certain way, will create a special command button. However, while intellectual effort is required to achieve a particular representation of a computer program, such representation will not enjoy copyright protection unless it, as an individual creation, meets the conditions prescribed by copyright law.

Logging off

Source and object code are subject to copyright as “literary” elements of a computer program.  This claim can finally be made only years after the regulations were adopted.  The cited international and national regulations were cumbersome; while the only thing certain was that a computer program enjoyed protection by copyright as a literary work.  In working through these quandaries, judges were tasked with framing a legal standard to deal with the intricate and complicated facts of those cases.

It takes time, knowledge and skill to build a computer program.  The same resources are also needed to interpret the relevant legislation – to provide adequate protection to one’s work without limiting the creative spirit of others.  This is probably why the spotlight on user-known elements were put in, as the functionality of the program is very close to an idea that cannot be copyrighted.  Foreign courts deem it justified to give preference to source code which is the “beginning and the end of a program” and from which all its essential characteristics originate.

Serbia’s courts have not yet established practice on this issue.  Serbia’s IT market is experiencing a boom of sorts and in turn, there is a plethora of experts whose achievements need to be given proper copyright protection.  Time will tell whether Serbia’s courts will take on board the knowledge and years of experience of judges from other countries, or whether they will forge their own practice, without regard to international norms and legal standards that Serbia is duty-bound to respect.

Author: Suzana Dončić