Copyright – Protection for Software

How can software be protected?

There are various ways the intellectual property of software that has been developed by a business or person can be protected.

The high level of the criteria required to patent software is difficult to meet – a much easier way to obtain protection lies with copyright. Copyright protects your work and stops others from using it without your permission. It arises automatically and it’s free.

Copyright protection on software stems from the Copyright, Designs and Patents Act 1988 (CPDA 1988) and Directive 91/250/EC (the Software Directive).

What sort of protection does copyright afford?

CPDA 1988 specifically provides copyright protection for computer programs, preparatory design material for a computer program and databases. To attract copyright protection, the work must originate with the author and there must have been ‘a modest amount of skill, labour or judgment’ involved in its creation.

Copyright does not subsist in a work unless and until it is recorded, in writing or otherwise. Any ideas or principles underlying the subject are not therefore protected and should be protected by patents if applicable.

Copyright prevents others from:

  • copying your work;
  • distributing copies of it, whether free of charge or for sale;
  • renting or lending copies of your work;
  • performing, showing or playing your work in public;
  • making an adaptation of your work;
  • putting it on the internet.

The closer to the original the copy is, the stronger the infringement. This means if the copy has a substantial amount of the original work directly copied into it, the infringement should be relatively easy to prove.

Under s 21 of CDPA 1988, the making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work. In relation to a computer program or database, this means an arrangement or altered version of the program or a translation of it. The problem, when it comes to copyright in software, is non-literal copying.

Non-literal copying

Non-literal copying is a form of copying that does not include the wholesale lifting of one program into another. It can arise where elements of the program such as its arrangement, chain of operations, functions, interfaces and styles are copied but the program code is not directly copied.

One problem lies with assessing how much the substantial part of the software has been taken, bearing in mind that the law gives protection for the expression of a work not the idea behind it. In term of software, this idea/expression dichotomy means the code that is written is protected but what the programme does or how it achieves its goals is not.

How do the courts approach this?

Access plus similarity

The earliest cases in this area took place in the US, with Europe using these cases to inspire their own protection measures. In the US case of Whelan v Jaslow a similar program was written in a different programming language. There were step-by-step similarities in essential subroutines, leading to the suspicion of copying. In this case a very simple test was used. It first had to be shown the defendant had access to the software in question and then that there was an ‘objective similarity’ between the defendants program and the original.

Access may be found if, for example, a programmer has switched companies or is a freelance contractor who has worked for both the copyright holder and the defendant. If this form of access has been found it may be possible to further sue the contractor or ex-employee for breach of confidence.

Abstraction-filtration-comparison (AFC)

The test firstly reverse engineers the programme, identifying the key elements (an abstraction), secondly it removes the key elements that are common in the art (filtration) and finally compares what is left of the two programs to see if there is a substantial taking (comparison). This was used in the UK in the case John Richardson v Flanders.

Over-borrowing

This test was introduced when it was thought the AFC test was too complicated. This test is similar to the idea of looking for access plus similarity but the elements of the program including the code, the structure and the design are also taken into account when comparing the two programs. For example, common spelling errors throughout the programming, common comment headings and similar redundant sub-routines would be looked for. This approach has been used in cases such as Ibcos v Barclay and Cantor Fitzgerald v Tradition UK.

What is the current situation?

Non-literal copying is still a contentious field. In the UK it appears the test of access plus similarity still holds a lot of weight. It also seems the AFC test preferred in the US is, in the opinion of the UK courts, too complicated. A simple test of over-borrowing was enough in Ibcos v Barclays. It must be remembered, however, that any infringement will still be assessed under the traditional substantial parts test from conventional copyright, after the work to be protected had been found.

Other Important Information

*No Win No Fee

  • Although all our cases are handled on a no win no fee basis, other costs could be payable upon solicitors request. These will be fully explained to you before you proceed. Most customers will pay 25% (including VAT) of the compensation they are awarded to their law firm, although this may vary based on individual circumstances. Your solicitor may arrange for insurance to be in place for you to make sure your claim is risk free. Termination fees based on time spent may apply, or in situations such as: lack of cooperation or deliberately misleading our solicitors, or failing to go to any medical or expert examination, or court hearing.
  • *Criminal Injury Claims

  • If you want to make a claim for a criminal injury, you are not required to use the services of a claims management company to pursue the claim. You can submit your claim for free on your own behalf, directly to the Criminal Injury Compensation Authority (England, Wales, and Scotland) or the Criminal Injury Compensation Scheme (Northern Ireland).
About the Author

Nicola Laver LLB

Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.

When you submit your details, you'll be in safe hands. Our partners are National Accident Helpline (a brand of National Accident Law, a firm of personal injury solicitors regulated by the Solicitors Regulation Authority). They are the UK's leading personal injury service. Their friendly legal services advisers will call you to talk about your claim and give you free, no-obligation advice. National Accident Law may pay us a marketing fee for our services.

By submitting your personal data, you agree for your details to be sent to National Accident Law so they can contact you to discuss your claim.

If you win your case, your solicitor's success fee will be taken from the compensation you are awarded - up to a maximum of 25%. Your solicitor will discuss any fees before starting your case.