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COPYRIGHT – Protection of computer programs

CATEGORY: LICENSING – REGULATORY COMPLIANCE

COPYRIGHT – Protection of computer programs

Applicable Law

The law governing intellectual property rights in relation to works and acts eligible to copyright protection in the Republic of Cyprus is the Copyright and Related Rights Acts Law of 1976 (59/1976) (the “Copyright Law” or the “Law”). According to article 3(1)(a)(ii) of the Copyright Law, literary works are eligible to copyright protection afforded by the Law. The term “literary work” as defined in article 2 of the Law and in accordance with Berne Convention for the Protection of Literary and Artistic Works of 1971 (as has been revised in 1979) (the “Berne Convention”) and the Directive 2009/24/EC on the legal protection of computer programs (the “Software Directive”), includes computer programs.

Eligibility for protection

Pursuant to article 3(2) of the Law, for a work to be eligible for protection, it must be in substantive form and consist of original work. More specifically, in relation to the protection of computer programs, the relevant protection extents to the preparatory design material leading to the development of a computer program, comprising any flow charts, graphs and functional or technical specifications which, for reasons of clarity, does not include the description of the functionality of the computer program or any other information that can be deduced from observing the user interface of the program and its look (the “Preparatory Work”) while, according to article 7B(2) of the Law the ideas and principles that have been used as the basis for the creation of the computer program, are not eligible for copyright protection. The protection afforded by the Law is limited to the manner in which an idea is expressed, provided that the idea can be expressed in more than one ways and that the expression of the idea is “original in the sense that it is the author’s own intellectual creation”. The literary work is found to be original, if the author shows sufficient labour, skill, judgement and his/her own creative choices.

Considering the above, a computer program may be eligible for protection under the Copyright Law as the expression of an idea that is produced in writing (including the storage in a computer), provided that the computer program is not a product emanating from a copyright law infringement and more specifically provided that there is no other computer program expressing in the same way the same idea; the expression of the idea is original in the sense that it is the product of the author’s own skill and labour; the new computer program is not a product of copying of an existing computer program, either wholly or partially or of translation into a different programming language, adaptation, alteration or rearrangement.

Computer Program and User Interface

When examining the copyrightability of a computer program, it is important to analyze the elements that compose it in conjunction with the idea-expression dichotomy. The term “computer program” is not specifically defined in the Directive, however, in the Proposal for a Council Directive on the legal protection of computer programs COM(88) 816, “computer program” was described as the “set of instructions the purpose of which cause an information processing device, a computer, to perform its functions”. The code of the computer program is a protectable element of that program, since it consists of the instructions for the performance of the program’s functions and it constitutes the expression of an idea. Based on the above definition, the protectable elements of a computer program should not extend to the functionality of such program and its “look and feel”, which constitute elements that can be recreated in another program, even if the programmer did not copy another program’s code line by line or even had access to it, such as the computer program’s structure, graphic user interface (“GUI”) -which is the computer environment that allows a user to interact with the computer through visual elements-, sequence and organisation.

The above has been established through UK case law, in Nova Productions Ltd v Mazooma Games Ltd & Ors [2007] EWCA Civ 219, a Court of Appeal decision and in Navitaire Inc v Easyjet Airline Co Bulletproof Technologies Inc. [2004] EWHC 1725, a High Court decision, where it has been found that if a computer program emulates the functionality of an existing program, without copying its code, then this does not amount to copying protectable expression of computer program. In addition, based on the opinion of the Advocate General of the Court of Justice of the European Union (“CJEU”) delivered on 14 October 2010 for the case Bezpečnostní softwarová asociace Svaz softwarové ochrany v Ministerstvo kultury Case C-393/09, the protection afforded by the Software Directive covers the literary elements of a computer program, the source code and the object code, which form the basis of such program; however, the interface that enables communication between the program and the user could not be regarded as “an expression in any form of computer program” within the meaning of article 1(2) of the Directive and therefore cannot benefit from the copyright law protection on computer programs. More specifically the Advocate General found that the expression of a computer program, in whatever form, must be protected “from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its tasks”, concluding that the GUI alone cannot give that result. The CJEU agreed with this reasoning in its ruling for the same case, where it was found that a GUI “merely constitutes one element of that program by means of which users make use of the features of that program”. These findings were subsequently invoked in the CJEU preliminary ruling for the case SAS Institute Inc. v World Programming Ltd Case C-406/10.

Considering the above, the courts are not inclined to extend the copyright protection for computer programs to the functional effects of a program and more specifically to the business logic or the look and feel of the program. It could be therefore concluded that another computer program can be developed independently based on similar principles to an existing program and be afforded copyright protection, on the condition that the authors of such computer program express these ideas and principles in their own way by using their own skill, judgement, choices and decisions.

   Author: MYRIA GEORGIOU

 

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