With so many different aspects to software, the protection of software draws on many different areas of law. Protection of source code as a copyright literary work was specifically introduced in the UK in 1992, however the ways and means to protect software extend further than this. The foundations for software protection lay directly and indirectly by contract, copyright, designs law, patent law, trade marks, passing off, law of confidence and trade secrets.
What is Protected and How?
Intellectual property rights do not protect ideas. It protects the embodiment of ideas in their expressed, recorded or implemented form. For computer software this means copyright protects source code in the way that it appears on a hardcopy, and in its compiled forms. Intellectual property rights do not protect ideas unless they 1. are confidential and 2. remain confidential. Confidential information will protect information in all its forms, spoken, written or recorded by some other means.
As copyright is qualified monopoly – it does not protect all works for all purposes – copyright will not protect algorithms used and mathematical calculations used in source code. The rationale for this is that a copyright owner does not own the facts or ideas expressed in the work, only the particular way they are expressed, or written down.
Intellectual property rights are protected by contract with users. These will be familiar, as in the industry they are referred to as software licenses. Licenses of intellectual property rights is incredibly flexible, and in essence they are simply permissions to use software subject conditions. The conditions for the use of software rely on the context of the license. In commercial software licenses, the license will be granted in exchange for a payment of money, and may be limited in any number of ways. For instance the licensee may only be permitted to use one copy of the license, or the use of the license may be limited by the territory. The permission used in open source licensing is granted on condition of the principles espoused by the Free Software Foundation.
The best way to protect software is to only release copies of the software in an obfuscated compiled form.
Designs law protects the appearance of physical articles, however designs law in the UK has been extended to allow registered design protection for icons and other designs that appear on a computer screen.
Areas of Law Protecting Software
Copyright – copyright protects the skill and judgment invested in creating a work, and others may copy the functionality provided they do not copy the original program. In this way, copyright does not protect functionality in its own right.
It is trite to say that constantly developed software attracts perpetual copyright protection. Variations of source code may amount to ‘adaptations’ of the original namely variations of the source code in language and coding methodology.
There have been a line of cases where claimants have claimed that the look and feel of users interfaces displayed by software has been infringed. UK Court have are inclined to make a finding that copyright ahs been infringed when it occurs on an abstract level, as it would be unfair on the public, as there must be a degree of certainty of what will infringe and what will not. This reasoning pervades judgments involving other types of copyright works, such as the decision in the Da Vinci Case.
Lawful users of software are entitled to perform certain activities on third parties’ software. They may backup the software, both decompile and reverse engineer software for specific purposes (that is to study the ideas contained in the source code, or create other software that interfaces with the original software), and edit software for the purpose of correcting errors.
Patents – provided the software steers clear of the exclusions to patentability, patent law will protect the method that the software uses to perform the process. The protection lasts for 20 years. Protection is more easily obtained in the US, as business methods are patentable, whereas in the UK business methods are specifically excluded. The trade off with the expense involved is the marked strength of protection granted.