Copyright: Protecting Intellectual Property Rights

Introduction

In jurisdictions around the world the right to property is not only recognized but is respected by both the state and its citizens. Thomas Hobbes and John Locke have different perceptions of private property but agree on its existence and efficacy. Copyright law thus stems from the need to protect the right to property. The difference in copyright is that it deals with intangible property. The law seeks to protect the original works of authors such as artistic, literary, dramatic, musical, and other intellectual property rights. This protection encompasses an author’s original works both in fixed and tangible medium. In as much as it is important to protect the ideas and expressions in the works of authors, the same should not stifle innovation and others purposes beneficial to the general public. Therefore the right to intellectual property is not absolute and can be limited for certain purposes. Limitation of this right can be justified under the auspices of fair use by another person. Basically, there are exceptions in copyright infringement that allow the use of a variance of the original work of an author.

Today, technological advancements has presented new challenges to the conventional forms of copyright. Tech companies are working around the clock to introduce new computer innovations that will make life easier than the last innovation. Judicial decisions in the US, UK and EU region has reflected the changing nature of copyright law and the attendant implications. This paper will revisit the journey of copyright protection in the above jurisdiction with an aim of analyzing the place of software copyright and the judicial implications.

Software Copyright infringement in the US

Position before Google case

The United States copyright law is anchored in the Copyright Act. It provides for the foundational framework on the protection of copyrights and the permissible infringements. Apart from statutes, copyright law in the US has evolved over time and there have been developments as can be seen from the litany of available judicial precedents. Section 107 of the Copyright Act provides for the limitation on exclusive rights to copyrighted work and provides for fair use. Fair use is thus allowable for purposes of criticism, news reporting, teaching, comment, research and scholarship. And for these purposes, one is exempted from copyright infringement. In line with the above statute, there are laid down yardsticks for the determination as to whether reproduction or use of a copyright amounts to fair use. First, the purpose and character of the use including whether such use was of a commercial or non-profit nature. Second, the nature of the copyrighted work. Third, the amount and substantiality of the portion used in relation to the whole work. Fourth, the effect of use upon the potential market. In a dispute of copyright infringement, the court will use the four factors as guidelines in making a fair use determination. Apart from the four statutory factors, judicial precedent introduced a fifth element in 1994. In order to bring out a better understanding of fair use it must also be of a nature that is transformative. The fair use should not just be mere copying in verbatim but should be one which creates something completely new or altering the original work with a new meaning. The effect of the transformative nature of the work is that work will be held to be a fair use even when it does not meet the threshold of the four statutory factors. Parodies and new technologies are notorious for being transformative in their uses.

In 1984, the Supreme Court of the United States had to decide on whether the use of a VCR technology by Sony amounted to copyright infringement. Sony had come up with a technology that enabled individual users who bought the VCR device to make copies of television shows at their homes. Universal studios claimed that actions of Sony amounted to copyright infringement. However, the Supreme Court through majority decision held that the technology introduced by Sony did not amount to infringement of Universal Studios’ copyright but fair use. Justice Harry Blackmun in his dissent, expressed doubt as to whether Congress intended to allow manufacturers to sell products that are used exclusively to infringe copyrights. Decades later, the same court had to consider whether Grokster had committed software infringement in the MGM Studios Case. In this case the defendants were unanimously held to have induced copyright infringement in the course of marketing their file sharing software. The problem with this decision is that it brought more uncertainty than before. It limited in some aspect the ability of inventors going public with their new technologies for fear of lawsuits. Again, the use of copy machines and iPods can be said to fall within copyright infringement as decided by the Court. All in all the decision was one involving striking a balance between protecting new technologies and remedy against copyright infringement.

Oracle-Google Case

Oracle America commenced an action against Google in the United States District Court for copyright infringement. Eventually, the case came before the United States Court of Appeals for the Federal Circuit for determination of an appeal by Oracle. The court had to decide whether Google’s acts of copying 37 of 166 Java’s API packages amounted to a fair use. The burden of proving fair use was on Google to convince the court that it using the API packages, they had met the four statutory factors for fair use. Again, they had to establish that such fair use was one that was not merely copying in verbatim but a transformative one. Indeed, it has been previously established that the more transformative a work, the less risk of copyright infringement. The court found that Google’s use of Oracles’ copyrighted API packages was non-transformative and of a commercial use. This finding is in line with the reasoning in a prior case of Warner Bros. Entertainment Inc. v. RDR Books where the court had to decide on the degree of transformation in a legal dispute regarding a Harry Porter series. The court in the Warner Bros case decided that the creation of a Harry Porter encyclopedia was slightly transformative and was thus insufficient to warrant the defense of fair use.

Similarly, Google was found to have extensively copied Oracles software in verbatim hence the defense of fair use could not suffice. It therefore appears that merely repackaging a copyrighted work will not amount to a transformative use of copyrighted work. Having found that Google’s use was not transformative, the court proceeded to look at the other four statutory factors. In their analysis of fair use by Google, the Federal Circuit were not persuaded that the use was not for commercial purposes. Even though google availed the software freely, they benefited from advertisement revenues. On the second factor, the court considered the nature of copyrighted work. They found for fair use considering that the 37 API packages involved some elements of creativity. This finding was informed by previous decisions indicating that software products are to some extent not creative works per se. in Sega v Accolade, the United States Court of Appeal for the Ninth Circuit held that the reverse engineering of computer software and subsequent publishing was protected by fair use. Essentially, the decision in Sega case established that the functional principles of computer software do not enjoy the protection of copyright law. A similar position was affirmed in 2000 when the Ninth Circuit Court of Appeals held that copying of a protected BIOS software in the process of developing an emulator software did not amount to copyright infringement but falls under fair use.

On the third factor, the court had to determine the substantiality and amount of the portion of Oracle’s software used. It was apparent from the record that Google had used 37 out of the 166 API packages from Oracle. Interestingly, fair use can be defeated even if the amount used was of miniature portion so long as it is found to be at the core of copyrighted work. Elsewhere, the Supreme Court in Harper & Row Publishers, Inc. v. Nation Enters found that copying 350 words from a book was sufficient to defeat the defense of fair use since the words were the most valuable in the text, at least qualitatively. In the end the judges reached a conclusion that although Google copied a small portion of Java software belonging to Oracle, the same cannot be dismissed as being insignificant since it formed the basis of Android technology. Therefore, it is apparent that the determination of substantiality is too discretionary and merely depends on the circumstances of each case. Regarding the fourth factor, the Court considered the effect the infringement had upon the potential market. In finding for Oracle the court highlighted that the Android platform created out of the Java software would adversely affect potential market for Oracle’s original Java software. Referring to its previous decision in the Harper case, the Supreme Court emphasized the weight of the last factor over the other three despite their independence. They essentially stated that where the infringing copy deprives the owner of original copyrighted work of income or negatively interferes with potential market of copyrighted work.

In the end, the court found against fair use in favour of Oracle. The repercussions of this decision will mostly be felt by tech developers dealing with software. However, the decision implies that fair use does not cover software reuses except non-functional reuses. One would rightfully assume that the decision completely kills the defense of fair use in software usage. For innovators, this decision is a dangerous precedent that should be appealed. Again section 102(b) of the Copyright Act limits the protection of copyright in software and this provides a wider a scope for fair use of software. Contrastingly, the decision of the court departs from the preceding point. In the field of computer science, developers create new technologies by building on existing ones and improving other people’s work. The ruling in Oracle v Google will dampen the spirit of innovation. Moreover, the principle of transformative use should have been upheld for Google. In the District Court trial, the jury were indeed convinced that it was a transformative use. By applying the copied java software to smart phones should be considered as a transformative use of copyrighted work. The fact that Java had attempted to use the same software in their own smart phones is largely immaterial. The decision was an example of judicial bodies overstretching their role in development of the law because it overturned a computer industry’s long accepted customs and practice of reusing software interfaces.

Software Copyright infringement in the UK

Background

In 1769, booksellers England achieved a major milestone. The Kings Bench in majority decision ruled that there is perpetual common law right and that works were never to be in the public domain. As a result publishers’ common law rights were never extinguished by the Statute of Anne. It meant that when rights of publishers expired as per statutory requirement, there was still common law rights granted to the publisher. The decision basically gave perpetual copyright to publishers thus entrenching their monopoly. However, it was not long before the above position was reversed by the House of Lords in Donaldson v Beckett. Copyright in published works were found not to be perpetual hence were subject to statutory limits. A similar position was later to be adopted by the US in 1834. There has been continued development of the law on copyright protection especially in light of recent decisions of the European Court of Justice (CJEU). Initially, labour, skill and judgement was the relevant criteria for originality in copyright works. The interpretation of originality and what constitutes a copyright has changed since University of London Press v. University Tutorial Press. In Infopaq International v Danske Dagblades Forening, the CJEU stated thus, ‘that computer programs databases or photographs are protected by copyright only if they are original in the sense that they are the authors’ own intellectual creation.’ This ruling departs from the previous position on originality in English cases hence raising a lot of questions on the applicability of the same by UK courts.

Computer programs in the UK

The Court of Appeal in England and Wales had to consider an application denied by the United Kingdom Intellectual Property Office (UKIPO) in the Fujitsu’s Application. LJ Aldous in his judgment made some key observations that guided computer inventions for a long time. First, the court stated that UK courts should be guided by the decisions of the European Patent Office in interpretation of exclusions under the Patents Act. Before this application, the UK courts had dealt with excluded subject matter from patentability. In Merrill Lynch’s Application, a business method that automated the trading of securities was held not to be patentable. Nevertheless, the court went ahead to establish a link between the case and EPO case law in Vicom regarding technical contributions. In Aerotel v Macrossan, the Court of Appeal found that Aerotel’s patent could be regarded as a patentable invention because it involved the use of a new system, and not simply because it would be used in selling phones. Nonetheless, this decision has been reversed by a later finding by the High Court in England and Wales where Aerotel was the applicant. The patent granted by the court in 2006 was eventually revoked in 2008 for lack of inventive step in Aerotel v Wavecrest. Despite the later decision in 2008, the test put forward in the earlier decision in 2006 still remains as guidelines for determining patentability in four steps.

The Court of Appeal Judges thus agreed on four-step test. First, the claim must be properly construed. Second, the actual contribution must be clearly identified. Third, consideration as to whether the invention falls solely within the excluded subject matter. Fourth, ascertaining whether the actual or alleged contribution is actually technical in nature. Despite the effort to set a guidelines for determining patentability, determining whether a computer claim is patentable is still a convoluted area in practice. Again the UK approach appears to be too strict compared to the US liberal approach to patentability of software. For instance Graphic User Interface (GUI) has been judged by UK courts not to constitute a form of expression within category of literary works, yet the opposite position has been maintained in the US.

Fair dealing in software copyright and other exceptions

The Copyright, Designs and Patents Act 1998 permits the use of copyrighted works for certain purposes without the permission of the copyright holder. Hence, one can copy and use a copyrighted software without obtaining permission from the owner of the copyright. Fair dealing governs the use of copyrighted works in a way that does not prejudice the copyright owner’s rights to the work. Fair dealing is thus a reasonable test of how honest and fair minded person would have used the copyrighted work in issue. There use of such material should be to the extent that is necessary and also be justified in the circumstances. There are no hard rules when it comes to the application of the fair dealing doctrine in the UK, disputes will be determined on a case to case basis. Fair dealing exceptions include: research and private study; criticism, review, quotation and news reporting; and caricature parody and, pastiche. The rationale of fair dealing in copyrighted work is to enhance freedom of speech in a free and open society, especially in matters of public interest. Application of the fair use doctrine by the courts has been very conservative as can be seen in Hyde Park Residence Limited v Yelland where defense of fair use was rejected. While the defendants in the above case based their fair dealing defense on public interest, the Court of Appeal found that fair dealing would not apply where there is excessive use of copyrighted material. This judgment supports the notion that that UK courts have been reluctant to allow the use of the exception of fair use in more liberal way.

The doctrine of fair dealing covers almost all elements exempted for copyright infringement. Therefore, as provided above, fair dealing is confined to the following: news reporting; parody and satire, review, quotation and criticism; private study and research and illustration for education purposes. A person will not be in breach of a copyright if they can show that the use was only for purposes of criticism and review as outlined in section 30(1) of CPDA. Similarly, use for purposes of reporting currents events can constitute fair dealing depending on the circumstances as established in Pro Sieben [2000]. Computer programs and their designs are protected to a certain extent as literary works. As a result, copying parts or whole copyrighted computer program in verbatim will amount to infringement of software copyright. In 2013, the Court of Appeal upheld the decision of the High Court regarding the emulation of software functionality. WPS, the defendant in the case developed their own version of the plaintiff’s SAS software although they did not have access to the source code. Therefore, the question before the court was whether copyright protects the language or instruction in software code. SAS failed in this action and the court found that copyright in a computer program did not cover programming language or its interfaces or its functionality from being copied. In confirming the High Court judgment, the superior court found that no copyright infringement in software with the same functionality.

Before the above case, the England and Wales High Court of Justice was faced with a similar case. The matter in question was an online ticket booking system. And the upshot of this court’s decision was that copyright only governs the expression of ideas and not the idea itself. Just like in the SAS decision, it was affirmed that only the source code or object of a code program that could be covered by copyright law. Later in 2007, the Court of Appeal again confirmed that a program could not be said to infringe on copyright if produces similar results but possess different underlying source code. In the same vein, UK copyright law permits certain lawful uses of copyrighted programs which would otherwise amount to infringement. Making of backup copies of a program for normal use is permissible. A user can also decompile a program with the sole purpose of coming up with another program that can be operated in the decompiled program. Further, users can observe, study and test a program to realize its functionality and the underpinning principles and ideas. A person who relies on the defense of fair dealing must show that it was done in fairness. Ironically, there is no definition of fairness in the said statute. Therefore, determination of fairness is in the discretion of the court and it will do so depending on the circumstances of each case. The lacunae present in this law presents a challenge to both litigants and the judicial officers.

All in all, a balance must be struck between fair dealing and exceptions to copyright infringement. In as much as exceptions are importance to the society in enhancing free speech with regard to matters of public importance, limitation of the exceptions is necessary to protect the interests of copyright owners. Moreover, the balance of fairness usually favors the copyright owner in most cases. UK legislations and case laws do not expressly provide for fair use as defense to copyright infringement perhaps because of its uncertain nature. For now, UK employs the fair dealing approach with traces of fair use borrowed from US case law on copyright infringement.

The EU Approach

By virtue of membership in the European Union, the UK and other member states are affected by European Conventions. The European Patent Convention has therefore been applied by countries like UK to fill gaps in their national legislations. UK courts have on many occasions referred cases to the European Court of Justice for hearing and determination. Additionally the European Patent Office which is an executive limb of the European Patent Organization, serves inventors from 44 countries with uniform application procedures for patents. Even though, all EU members are subscribe to the European patent system, it covers countries outside the European countries. Hence, copyright protection in the European Union is different from the one under the European Patent Office. Strictly under the EU, copyright law is contained in a number of directives which are to be enacted by member countries into their national laws. In addition to this, member countries are guided and adhere to judgment of the European Court of Justice. Again all EU members are signatories to the Berne Convention for the Protection of Literary and Artistic works. This convention attempts to harmonize copyrights of authors across borders of signatory countries by enforcing recognition and equal treatment of the same. Berne Convention also provides for specific exemptions and establishes a framework for members to develop their own exceptions.

Article 13 of TRIPS Agreement provides that exceptions and limitation to copyright in national laws should meet the ‘three step approach.’ All EU countries being signatories have implemented this provision by listing all permitted exceptions and limitations in their copyright laws. Additionally, the Copyright in the Information Society Directive of 2001 provides a list from which EU states can choose from when legislating locally, and also those which they cannot included in their national laws. This approach has proved to be rigid unlike the fair use doctrine in the US which is flexible. Implementation of the directive has raised questions as to the adaptability of EU countries to new technologies. As result, some European countries have gone beyond EU copyright laws to find solutions and enhance flexibility. The Federal German Supreme Court appreciated that its laws did not cover reproduction of thumbnails of photographs and instead found under implied license theory that such acts did not infringe copyright. Paris Court of Appeals, considering the same matter extended their interpretation to a different directive, E-Commerce Directive. Most courts in the EU countries are thus in dilemma especially with regards to permissible use of software copyrights under the defense of fair use. The challenge, however, is that fair use is inconsistent with the Directive of 2001. It is foreseeable that one after the other, EU countries might start following the footsteps of Israel by adopting the fair use doctrine in their domestic laws.

In Bezpecˇnostnı´ softwarova´ case, the CJEU considered the GUI could be subject to copyright protection. It was the opinion of the court that GUI does not enable the reproduction of a computer program and is not an expression of computer program thus is not copyrightable as per EU Software Directive. This decision is a sharp contrast with the opinion of US courts regarding GUI. Later in 2012 the same court pronounced itself in a landmark case in interpretation of originality in the context of special types of works like computer programs. The court ruled that football fixture lists were within the definition of database in Article 1(2) of the Directive and it constituted authors own intellectual creation. The mischief in all the CJEU decisions using the criteria of intellectual creation is that there is no agreed definition of the same

Conclusion

The rationale behind copyright law is protection of author’s investment from being undermined by copy cats, competitors and any other unauthorized use for financial gain the expense of the author. The US has a robust laws on copyright and has adopted a flexible approach with regard to exceptions to copyright infringement. Although it appears too flexible and uncertain, it has been the admiration of EU countries that are grappling with the rigid interpretation of copyright limitations in their national laws influenced by EU Directives on Copyright. It is likely that the EU will in the future adopt the US doctrine of fair use grounded in the four statutory factors. For the UK, fair dealing has been their version of fair use in exemptions in copyright law albeit limited in construction just like EU countries. Finally, interpretation of both fair use and fair dealing by the courts has repercussions on the future of innovation and can either inspire growth or discourage inventive spirit as evident in the Oracle vs Google case.

Bibliography

Aerotel Ltd v Wavecrest Group Enterprises Ltd & Ors [2008] EWHC 1180

Aerotel v Telco & Neal Macrossan's Application (Aerotel/Macrossan) [2006] EWCA Civ 1371

Bezpecˇnostnı´ softwarova´ asociace v. Svaz softwarove´ ochrany v Ministerstvo kultury [2011] FSR 18

Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 2016-2684, 2017-1922 (Fed. Cir. Jan. 23, 2018)

Football Dataco Ltd and others v. Yahoo! UK Ltd and others, 1 March 2012 (Case C-604/10)

Google Thumbnails (Case I ZR 69/08 German Federal Supreme Court 2010)

Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell: CA 10 Feb 2000

Infopaq International v Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08)

Infopaq International v Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08)

Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd [2007] EWCA Civ 219

SAIF v Google France (Paris Court of Appeals 2011)

SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482

Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)

Sony Computer Entertainment v. Connectix Corporation, 203 F.3d 596 (2000) 471 U.S. 539 (1985)

Anne B, Copyright Infringement, ‘Free-Riding’ and the Lifeworld (LSE Law 2008)

Jason H, Crtically reconceptualizing the United Kingdom’s fair dealing exception to copyright infringement in light of the government’ s most recent proposals for reform and lessons learnt from civil law countries, (2012)

Menell PS, Against Defibrillating the API Copyright Dead: A Response to Advocates of Copyrightability of Software Functional Specifications. (Harvard Journal of Law & Technology 2018)31

Oman R, Computer Software as Copyrightable Subject Matter: Oracle V. Google, Legislative Intent, and the Scope of Rights in Digital Works. (Harvard Journal of Law & Technology 2018)639.

Rahmatian A, Originality in UK copyright law: The old “skill and labour” doctrine under pressure. IIC-International Review of Intellectual Property and Competition Law, (2013)44, 4-34.