Legal Protection of Software – A Brief Consideration

It is important that although intellectual property rights cover a huge area of personal ownership, in business there are some that crop up more than others. The usual protection that business owners jump at first are trade marks and patents or even design rights. However, software is equally as important to legally protect but is in fact an unregistered right

Software has many connotations depending on who you ask, but for the purpose of this overview, it is to be applied to the traditional understanding as meaning ‘computer program’, even though legislation is arguable lacking in any firm definition. Note that the reality, software can actually include graphics or other elements such as sound effects which add to the computer program package as a whole. The reason for highlighting this is because it is not just one physical thing which can be held in your hand or seen, and the different elements may attract individual protection.

We have published many articles which detail the meaning of unregistered rights which afford for copyright protection but usually gloss over the fact that software attracts the same intellectual property rights. Copyright protection and definition is relatively simple; it is the legal protection of works produced by an owner such as an author, publisher or distributor of works such as literary, musical, architectural or generally artistic. This is defined further in the Copyright, Design and Patents Act 1988 (CDPA). The development of software or computer program is also covered within this meaning but is not clearly named. For further explanation, albeit not overly clear, can be found in the Software Directive 2009/24/EC or the UK equivalent, Copyright (Computer Programs) Regulations 1992 (SI 1992/3233) (Regulations) which is also the go to piece of legislation that is followed if there is any legal dispute.

It states that “Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.” Again, this is not clear and even by the provision of a computer program definition it still leaves the scratching of heads. This is outlined as “programs in any form, including those which are incorporated into hardware [and].. 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”

There is still no core, easily understandable explanation to what exactly it is that affords protection so may be best to break it down as follows. Essentially, to protect software as copyright, which is automatic, consider the two key elements of computer programming which are source code and object code. These are the core applications used by computer programmers. Object code is using 1s and 0s to instruct the computer what to write and source is a more advanced method of this but beyond the scope of this article. Fundamentally, both forms of code are inputted by a programmer is some form, that instructs the computer to follow what is being asked. It is this instruction and the end result which can then be considered as affording copyright protection. It is important to note that it is the program itself which is protected and may require further protection which are to be registered such as a trade mark or design rights for the packaging etc.

This is a detailed area of law and something which is followed daily by the team at Lawdit Solicitors so if you consider your software to have been or being infringed by a third party, do not hesitate to contact us to discuss this further.

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