4:16 AM
MASTERS OF LAWS IN INFORMATION AND COMMUNICATION TECHNOLOGY LAW– (LL.M - ICT LAW)
RESEARCH ON
“COPYRIGHT
DOES NOT PROTECT IDEAS, ONLY THE EXPRESSION OF IDEAS” HAS PROVED
REMARKABLY ILL-ADAPTED TO RESOLVING ISSUES OF ‘NON-LITERAL INFRINGEMENT’
OF COPYRIGHT IN COMPUTER PROGRAMS IN BOTH THE US AND UK COURTS. IT IS
HIGH TIME TO ABANDON THE ATTEMPT TO FORCE SOFTWARE INTO THE COPYRIGHT
MOULD AND TO CREATE A NEW RIGHT FOR PROGRAMS WHICH REWARDS AND PROTECTS
INTERNAL AND EXTERNAL FUNCTIONAL ASPECTS OF PROGRAMMING.’
BY
REHEMA E. Y. UROKI
1
ABSTRACT
The world wide revolution and expansion of societal use of the internet and social media is
giving rise to new laws and potential liabilities in cyberspace due to the expansion, growth and
development of information and communication technology (ICT). Under the intellectual
property context, copyright protects expression of the ideas and not ideas itself. Not only authors
and inventors are protected with copyright and patent laws respectively, but both copyright and
patent law are applicable and used to the protection of software. One form of protection is
arguably more better than the other and there are strong debates on these two forms of
protection of software up todate. Software is widespread, affecting almost every aspect of human
life in all parts of the world since long time. This study will provide the explanation, each side
offers as to the respective superiority of intellectual property protection under patent laws and
copyright laws and clearly show the existence that new technologies are challenging bright line
separations between the two forms of protection under the intellectual property. There is a need
of having standpoint of which is the better way to protect software program, either by copyright,
patent law or both, or better to have protection of software by Sui generis which will cover
software programs, and to create a new rights for programs which will reward and protects
internal and external functional aspects of programming.
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1.0 INTRODUCTION
The development of copyright protection for computer software has recently entered a "second
generation."1 In the context of rapid developments in computer technology and computer
software markets, the centre of the discussion has now shifted to a"second generation" issue: to
what extent non-literal aspects of computer software are protected under copyright.2 Many
current legal issues pertaining to copyright of computer software involve defining the scope of
protection of non-literal expression, such as "user interface" and "look and feel," in contrast to
literal expression, such as "source code," to which ownership may be more clearly attributed.
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This discussion paper will cater for the definitions of some important terms from intellectual
property, Copyright law, contention that the maxim ‘copyright does not protects ideas, only their
1
Edward
Samuels, 'The Idea-Expression Dichotomy in Copyright Law," 56 TENN. L.
REv. 321, 355-366 (1989) for a categorization of the developments of
computer software cases. See also Menell, "An Analysis of the Scope of
Copyright Protection for Application Programs," 41 STAN. L. REV. 1045,
1048 (1989). 2
There
is an uncertainty in the definitions of "look and feel" and "user
interface." "Look and feel" is generally defined as "a set of functional
capabilities of a programmed computer and the way it 'interacts' with a
user." Steven Lundberg, et al., The Copyright/Patent Interface: Why
Utilitarian "Look and Feel" is Uncopyrightable Subject Matter, 6
COMPUTER LAW. 5 (Jan. 1989). Likewise, "user interface" generally refers
to "all of the devices by which the human user can interact with the
computer in order to accomplish the tasks of the computer program."
Joseph T. Verdesca, Copyrighting the User Interface: Too Much
Protection?, 45 Sw. LJ. 1047, 1047 n.4 (1991). Some commentators and
courts have used the "user interface" and "look and feel" of computer
software interchangeably. See, e.g., Alan S. Middleton, A Thousand
Clones: The Scope of Copyright Protection in the "Look and Feel" of
Computer Programs, 63 WASH. L. REV. 195, 195 & n.2 (1988); Lotus
Development Corp. v. Paperback Software International, 740 F. Supp. 37,
63 (D.Mass. 1990). But one commentator states that the majority of
scholars differentiate between "look and feel" and "user interface,"
understanding that "user interface" is one element of "look and feel."
Brian Johnson, An Analysis of the Copyrightability of the "Look and
Feel" of a Computer Program: Lotus v. Paperback Software, 52 OHIO ST.
LJ. 947, 953-61 (1991). 3
Yutaka Nakamurat, Recent developments in Copyright Protection for Computer Software in the United States and Japan, 1993; Pg. 1
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expression’, computer program and its protection under copyright, at both UK and US.
Following with the argument that; is software copyrightable or patentable?. Finally, will be the
conclusion, and recommendation for the problem of protection of software.
1.1 Definition of terms
The phrase intellectual property (IP) refers to the bundle of legal rights that arise from the
creative genius of the human mind. Intellectual property refers to the property right conferred by
law to protect basically the creations of the intellect. The nature of intellectual property is to
encourage fair competition.4
Copyright; the right to copy, granted privilege protecting the printers' investment,5 it is the legal
protection given to certain types of original works and includes a wide range of creations,
including books, articles, posters, manuals, diagrams, figures and graphs, as well as CDs, DVDs,
software, databases and websites. It gives the copyright owner exclusive rights to control the
copying and dissemination of their works and can be a very valuable asset. Copyright gives the
copyright owner a number of exclusive rights, such as the right to copy, perform or communicate
their work to the public.6
4
By Thomas L. Peterson; How Intellectual Property Works, HowStuffWorks
Inc. 1998-2013 5Tumaini University, Iringa University College Students.
Used by permission. Posted to the University’s, Local Area Network (LAN)
by Laltaika E.I. July 23, 2006, Oxford University Press IJL&IT
2004.12(178) 6 McMaster Industry Liaison Office, Hamilton, Ontario
L8S4L8, 905-525-9140: 2000-2013
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Trade mark is defined under section 2 of the Trade and Service Mark Act7 as any visible sign
used or proposed to be used upon, in connection with or in relation to goods or services for the
purpose of distinguishing in the course of trade or business the goods or services of a person
from those of another. A ‘trade mark’ as a sign which distinguishes particular goods or services
particular to one undertaking from the goods or services of other undertakings.8
Patent law is a specific area of law that encompasses the legal regulation, jurisprudence, and
enforcement of specific intellectual property rights known as patent rights. A patent is a
government issued right granted to individuals or groups that protects their original inventions
from being made, used, or sold by others without their permission for a set period of time.
2.0 COPYRIGHT LAW
Tracing its origins from eighteenth century England,'9 copyright protection is a form of limited
monopoly granted by the government to authors of original intellectual works.10 Copyright
protection has been extended to a broad range of "works of authorship," including some aspects
of computer programs, it is a fundamental tenet of copyright law, first expressed in Baker v.
Selden,"11 that only an author's original expression of an idea is protected; an idea itself may not
be copyrighted. Thus, if he were alive today, Shakespeare might copyright his particular
7
Cap
326 RE 2002 8 David Kitchin et al, Kerly’s Law of Trade Marks and Trade
Names (14th ed. 2005) 10. 9 Statute of Anne, 8 Anne ch. 19 (1710)
(Eng.). 10 U.S. CoNsT. art. I, § 8, cl. 8. 11 101 U.S. 99 (1879).
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expression of the idea of a tragic hero's rise and fall (example, the text of Hamlet), but he could
not copyright the idea of a tragic hero's rise and fall itself. This notion is referred to as the
idea/expression dichotomy.12 Furthermore, copyright does not protect purely "utilitarian" works.
That is, one may not obtain a copyright in a work, such as a desk, whose only value is that it
serves some useful function-this is the essence of the utilitarian/non-utilitarian dichotomy.' The
idea/expression and utilitarian/non-utilitarian dichotomies are central elements of copyright
doctrine. Both are codified today at13, which provides that copyright does not protect "an idea,
procedure, process, system, method operation, principle, or discovery."14
An important variant on the idea/expression dichotomy is known as the "merger" doctrine, which
holds that where there are only a small number of ways to express a particular idea, copyright
protection does not apply. Morrissey v. Procter & Gamble Co.15, in such circumstances it does
not seem accurate to say that any particular form of expression comes from the subject matter.
However, it is necessary to say that the subject matter would be appropriated by permitting the
copyrighting of its expression. We cannot recognize copyright as a game of chess in which the
public can be checkmated.
12
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252-
53 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984). An important
variant on the idea/expression dichotomy is known as the "merger"
doctrine, which holds that where there are only a small number of ways
to express a particular idea, copyright protection does not apply. Thus,
for example, copyright protection does not extend to a description of
the rules of a game because the expression of the rules "merges" into
the idea of the game. See Morrissey v. Procter & Gamble Co., 379
F.2d 675 (Ist Cir. 1967). 13
17
U.S.C. § 102(b) 14 For example, the United States Supreme Court held,
in Mazer v. Stein, 347 U.S. 201 (1954), that the creator of a statuette
that served as a lamp base was entitled to copyright protection only to
the extent that the statuette had artistic or aesthetic value apart from
its functionality as part of a lamp. 15 379 F.2d 675; 154 U.S.P.Q.
(BNA) 193 June 28, 1967
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3.0 ‘COPYRIGHT DOES NOT PROTECTS IDEAS, ONLY THEIR EXPRESSION’
Although the work itself may be protected, the idea behind it is not. For some copyright works
people say that it is the expression of an idea that has copyright protection rather than the
underlying idea. However, the borderline between expression and idea is very difficult to define -
ultimately only the courts can do this. A traditional concept is that copyright protects the
expression of an idea but not the idea itself. This concept has been highly developed by US
courts. The approach of the UK court to this in the context of computer programs has been
varied. In the 1992 case of John Richardson Computers, it was thought that it would be right to
adopt a similar approach in England. A few years later, in Ibcos, the concept’s usefulness was
doubted, in that it would lead to complications so far as UK law is concerned and risk over
citation of US authorities, which are based on different statutes. The view was that UK copyright
cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea.
In Hollinrake v Truswell16, Herschell LC referred to the ‘fallacy perpetrated by counsel that
copyright could subsist in an idea’. In the case, the plaintiff failed in a claim for copyright in a
device for measuring the dimension of sleeves in the form of a cardboard measurement chart.
Rejecting the claim, the court identified the fallacy as the ‘failure to distinguish between literary
copyright and the right to patent an invention’. However, it is a fallacy which has survived to the
present. Over the last 100 years, the courts have repeatedly stated that copyright protection
16 (1894)
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extends only to the expression of ideas, not to the ideas themselves. Seemingly unchallengeable
authority has accumulated on this point, but it has not deterred litigants from attempting to claim
copyright in abstract ideas.
The requirement that a work must be put into a tangible form is one of the determining factors.
This will be of great importance even if the author is apparently unconscious of what is actually
being created, and the control of arrangements whereby the work is produced is left to another.
Similarly, it was stated by Lord Denning MR in Ladbroke v William Hill17, that ‘Ideas, thoughts,
fancies in a man’s brain are not protected’, but once reduced to material form are capable of
copyright protection.
In Donoghue v Allied Newspapers18, Farwell J stated, ‘A person may have a brilliant idea for a
story, or for a picture, or for a play and one which appears to him to be original; but if he
communicates that idea to an author or an artist or a playwright, the production which is the
result of a communication of the idea to the author or the artist or the playwright is the copyright
of the person who has clothed the idea in form’. In Donoghue, a ‘ghost writer’ wrote up the
experiences of a successful jockey. It was held that copyright was owned by the newspaper
employing the journalist who had produced the articles purportedly by the jockey, and not the
jockey, who simply recounted his experiences, but did not commit them to writing. Farwell J
17 (1962) 18 (1938)
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stated that ‘If the idea, however original, is nothing more than an idea, and is not put into any
form of words or any form of expression such as a picture, then there is no such thing as
copyright at all’. For instance, in Cummins v Bond19, the author was actually supposed to be a
ghost, the spirit of Cleophas from the New Testament who purportedly communicated through a
medium. The pen was held by the medium who was in a trance and who responded to prompting
and questioning from the defendant who believed himself to be in touch with dead Glastonbury
monks. The court (refraining from inquiring into the reality of the alleged spirit) held that
copyright attached to the medium who actually wrote the alleged utterances down. However, the
physical act of committing words or images into a material form is not always the determining
factor and the courts have, in the interests of practical necessity and commercial reality, accepted
certain refinements of these principles. A secretary who takes down a dictation of notes or a
mere copyist is not an author (Riddick v Thames Board Mills Ltd20; British Oxygen v Liquid
Air21,) an approach that can be justified on the basis that originality for the purpose of copyright
arises from the application of skill, labour and effort in creation, not simply the physical labour
of compiling a work.
19 (1927) 20(1977) 21 (1925)
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It is well established that there will be no copyright in a banal idea. In Kenrick v Lawrence22, the
plaintiff sought to claim copyright in the concept of a hand filling in a ballot paper. The court
affirmed that there could be no copyright in a banal idea. If an expressed idea was commonplace
and simple, nothing short of exact literal reproduction would infringe the copyright in it.
Similarly, if there is no other way of expressing a certain subject, there will be no copyright
capable of protection. (A point subsequently applied in a computer software case, Total
Information Processing Systems Ltd v Daman Ltd23, although since doubted.) In Bagge v
Miller24, the plaintiff had suggested the idea for a sketch, but left it to the defendant to compose
it in a dramatic work. The court took the view that ‘The mere suggestion of an idea which is
embodied by another in a dramatic work written by him does not constitute the originator of the
idea an author or a joint author of the dramatic work’.
In Wiseman v George Weidenfeld & Nicolson25, the plaintiff had been a helpful critic and
adviser in assisting the second defendant to turn a novel into a play. He had not written any
dialogue and, whatever his degree of artistic involvement, could not be said to be a joint author.
The courts have distinguished between the situations where a person has ideas and is then
commissioned to produce work, but, in each case, a work has been made subject to contract or
22 (1890) 23 (1992) 24 (1917–23) 25(1985)
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