September 16, 2020
Software & Technology

This blog considers the legal protection of software under UK law. It focuses on the application of the law of copyright to software, but also briefly considers other intellectual property rights which might be relevant.

 A computer program is primarily protected as a copyright work. The Copyright, Designs and Patents Act 1988 (CDPA) provides that copyright subsists in an original literary work, which is defined as including a “computer program” and the “preparatory design material for a computer program”, although the CDPA does not define what constitutes a computer program. The CDPA is, in this regard, implementing the EU’s Software Directive which provides that a “computer program”, including for this purpose, their preparatory design material, is protected by copyright as a literary work.

However, software is quite unlike the more traditional forms of copyright work – such as books, paintings or letters – for which copyright evolved. Accordingly, the application of copyright to software is not entirely straightforward. In particular, software has a life beyond the black letter of its text in a way that books or paintings do not. It is both a copyright work – in the sense of being a record of information – and a functioning work, which creates effects – such as screen displays or sounds and which may include errors and need to be supported or maintained. This can lead to complications in terms of the legal protection of software by copyright because it is axiomatic that copyright protects the expression of ideas, but not ideas or schemes per se.

Definition of Software

The fact that the term “computer program” appears to be interpreted as referring only to the source code and object code can also lead to difficulties in terms of analysing the copyright works which may subsist in a software package, which, in practical terms, comprises more than just the code. Above the source code or object code of a computer game, for example, there is a layer of visible content – what the user sees and hears when they are playing the game – which may include, among other things, graphics, music or sound effects protected by copyright. 

In order for copyright to subsist under UK law:

  • A work must fall into one of the categories of work protected by copyright under UK law.
  • A work must qualify for protection under UK law (this usually depends on the nationality of the author or place of first publication).
  • The term of copyright must not have expired.

The works protected by copyright are:Original literary, dramatic, musical or artistic works which, in the case of literary, dramatic or musical works are recorded in some way. A literary work includes a:

  • table or compilation other than a database.
  • computer program and preparatory design material for a computer program.
  • database which meets a specific originality test.

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Computer programs and preparatory design materials

Computer programs and the preparatory design material for a computer program are protected as literary works (section 3(1)(b) and (c), CDPA). The term “computer program” is not defined in the CDPA. However the term has been regarded as referring to source code or, in its machine-readable form, object code by the ECJ in the case BSA.

The source code and object code of a program will be protected as literary works, provided they are original. Software is frequently modified and updated. In each case where a program is revised or modified to a substantial degree, the new version will also be protected as a copyright work.

Additionally, design documents relating to the computer program, such as flow charts, graphs and functional or technical specifications would be protected as preparatory design material for a computer program. The definition of “computer program” in the Software Directive, provides that a computer program includes the preparatory design work leading to its development.

 While copyright is the main form of legal protection of software, most proprietary software companies also ensure that the source code of the software is kept as a trade secret, and only disclosed under a secrecy agreement where disclosure is necessary, such as to producers of related software. This is because, as discussed above, the source code is the key to understanding how the software functions and is essential for the maintenance of the software, since it will need to be examined to develop the software or correct errors or defects in it.

There are two basic requirements for information to be treated as confidential according to UK law:

  • It must have the necessary quality of confidence. In other words, it must not be public property or public knowledge.
  • It must be imparted in circumstances importing an obligation of confidence i.e. when shared it must not be done so as if it were public property or public knowledge.

The EU Database Directive (96/9/EC) sought to harmonise the legal protection of databases. A database is a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

The Directive standardised the “originality” threshold for copyright protection of databases, limiting such protection to databases which “by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” (Article 3, EU Database Directive). This requirement is reflected in section 3A(1)of the CDPA and hence also applies to software.

In the UK, a patent may be obtained in respect of an invention which is new, involves an inventive step, is capable of industrial or technical application and does not fall within any of the exclusions (Patents Act 1977). The owner of a patent can prevent any third parties from selling the product or process which is the subject of the invention. However, section 1(2) of the Patents Act provides that a patent will not be granted for “a program for a computer” to the extent that the patent relates to the program “as such”. This is derived from a similar provision in Article 52 of the European Patent Convention (EPC).

Although under the EPC computer programs are not patentable “as such”, it is well established that the application of a computer program may well be patentable if it possesses a technical character. What gives the application of a computer program the necessary technical character and takes it beyond the exclusion is difficult to determine. It should be noted that there exists some degree of inconsistency and uncertainty with regard to the approach taken to software-patenting across Europe by different national courts and patent offices. A proposed Software Patent Directive, which would have harmonised the position with regard to patent protection of software in the EU and resolved at least some of the questions on the patentability of software, was rejected decisively by the European Parliament.

Protection of software – other ways

Other than relying on UK laws, there are other ways in which software owners can and should protect their products. Adopting technical measures is the most obvious one for example, including encryption or the embedding of anti-piracy techniques directly into hardware. It is  also essential to have robust non-disclosure agreements and software contracts in place so that if a licensee infringes important rights the software owner can point to its NDA or licence agreement and take appropriate enforcement action.

EM law specialises in technology law. Get in touch if you have any questions on the above.