copyright in the eu – computer programs and databases dr e derclaye turin, october 2011
TRANSCRIPT
Copyright in the EU – Computer programs and
databases
Dr E Derclaye
Turin, October 2011
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The protection of computer programs
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The protection of computer programs
What is a computer program/software?Why copyright for software?International protection for computer
programsEC DirectiveUS/UK case law
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What is software ? - I
Computer programs or softwareSoft as opposed to hard – but…“computer program” is not strictly
synonymous with software but encompasses both software and firmware, but generally terms computer programs and software are used interchangeably
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What is software? - II
Several types: operating systems, application programs, crippleware, shareware, freeware, open source
Different languages (Basic, Pascal, Fortran, Cobol, C, Perl, Java, HTML…)
Preparatory materials (diagrams, circuits), source and object codes
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What is software ? - III
Traditional computer program
NOT GUI (result, output) (lit., artistic, audiovisual w) nor documentation (lit w)
- purpose or main function of program- program structure or architecture- data structures and algorithm(s) - flow charts or diagrams (not always used)- routines and subroutines (or part of code)
- source code - object code
Non-literal elements
“ “
“ “
literal elements“ “
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Web sites
http://www.webopedia.com/
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Why copyright?
Close to literatureNo new international instrument neededRight holder can sue the world >< contractProhibits exact (piracy) and similar copies
(infringement)Protection of expression not ideasSome Member States had already followed this
pathCriminal sanctions possible
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International protection for computer programs
Not in Berne ConventionArt 10(1) trips, art. 4 WCT: are literary
works within the meaning of Berne art. 2.
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Structure of Directive
Directive 2009/24 (ex-Directive 91/250)Directive’s main provisions: Articles 1-9
Idea/Expression dichotomy – art. 1.2 - // USAOriginality – art. 1.3 - // USAOwnership and beneficiaries – art. 2 & 3Rights - art. 4 Defences – art. 5-6
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Ownership and beneficiaries – art. 2 & 3
Natural or legal personIf joint creation => joint ownership
possibleIf created by employee in execution of
duties or under instruction of employer, employer entitled to exercise all economic rights unless provided otherwise by contract
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Art. 4: restricted acts
permanent or temporary reproduction in whole or in part, any means and any form
translation, adaptation, arrangement or alteration
any form of distribution to the public, including rental
Exhaustion with first sale in the Community
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Infringement
No test in DirectiveNational laws apply Not many cases in the Member StatesUK: John Richardson, Ibcos and CantorUS case law relied upon in the UK?
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Whelan v Jaslow
“… the line between the idea and expression may be drawn with reference to the end sought to be achieved by the work in question… the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea… Where there are various means of achieving the desired purpose, then the particular means chosen is not necessary to the purpose; here there is expression, not idea”.
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CA v Altai
The Altai test or "abstraction-filtration-comparison test" (AFC test) consists of three steps.
Abstraction involves dissecting the allegedly copied program and isolate each level of abstraction contained within it, i.e. discover the program's structure.
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Filtration
Filtration consists of examining the structural components for each level of abstraction and determining whether the particular inclusion at that level was an idea, was dictated by considerations of efficiency, required by external factors or taken from the public domain.
This enables to define the scope of the claimant's copyright. After filtration has been performed, one is left with the program's kernel of protected expression.
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Comparison
Finally, the court compares this kernel of expression with the alleged infringing program to determine whether there is substantial similarity between the two. If the alleged infringing program is substantially similar, it is infringing.
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UK case law
John Richardson – screen display (relies on traditional SSJL test)
Ibcos – literal infringement of literal and non literal elements. Traditional test for infringement: what is the work, was it original, has a substantial part been copied – Altai test not helpful nor merger doctrine
Cantor – 2% code copied – infringement only if original parts taken i.e. where SSJL subsists >< what is worth copying is worth protecting. Architecture of program is protectable if it is an original substantial part
Mars – a computer program can include a database
Recent cases
Navitaire v Easyjet: GUI case: individual commands, collection of commands not protected, screen layouts = LW or AW
SAS v World Programming (2010) – High Court refers questions to ECJ (on the interpretation of art. 1(2) and 5(3))
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Recent cases
Navitaire v Easyjet (2004):It is not an infringement to copy
programming language in particular commands and syntax, the program’s interfaces and the program’s functions IF it is done without copying the source code i.e. if done while studying, testing, or observing the program
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SAS Institute v World Programming (2010)
Copyright in manual (LW), computer program (“SAS components”), but programming language?
“Copyright in the computer program (…) protects the skill and labour that went into devising the form of expression of the program,… that is to say its design and source code” so skill etc expanded in creating ideas, procedures, functions … of a program, does not count
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SAS Institute v World Programming
Thus as WP reproduces in the main only functions (eg names and procedures), it doesn’t infringe
However many points are not clear => ref to ECJ. On art 1(2) Software directive: Is it an infringement to reproduce the functions of a
program while not reproducing its code; in this respect, does it matter the amount of SJL expanded in devising the functionality?
Is it correct that keywords and syntax of a programming language are not protected by copyright?
Does it make a difference if the author of the 2nd program created it while observing, studying or testing the functioning of the first program?
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SAS Institute v World Programming
And questions on art 2(a) Infosoc directive re LW
Mainly again asking whether mathematical formulae, commands, combination of commands, keywords, syntax, etc are protected by copyright
Q: are languages, algorithms, interfaces ALL totally excluded from copyright protection?
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Conclusion: infringement
Problem: copyright protects well against piracy (exact copies) but not much against similar but not identical copies
Thus attention has been drawn to alternatives such as patents – see Software Patent Directive Proposal (2002), case law EPO
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Art. 5: exceptions
Art. 5.1 (s. 50C(1)): can perform restricted acts of reproduction, adaptation, etc. but not distribution to public + rental if
necessary for the use of the computer program +
done by a lawful acquirer +in accordance with program’s intended purpose
e.g. including error correctionNB: in the absence of specific contractual
provisions
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Art. 5: exceptions
Art. 5.2 (s. 50A(1)): back-up right: 2 conditionsBy person having a right to use the program insofar as it is necessary for using the programArt. 5.3 (s. 50BA): lawful user’s right to observe,
study and test (3 conditions)Common condition to art. 5 = lawful acquirer
SAS Institute v World Programming
Question to ECJ on art 5(3): “Where a person has the right to use a copy of the First
Program under a licence, is Article 5(3) to be interpreting as meaning that the licensee is entitled, without the authorisation of the rightholder, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the First Program so as to determine the ideas and principles which underlie any element of the program, if the licence permits the licensee to perform acts of loading, running and storing the First Program when using it for the particular purpose permitted by the licence, but the acts done in order to observe, study or test the First Program extend outside the scope of the purpose permitted by the licence?”
And more…
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Art. 6: decompilation (s. 50B)
“reverse engineering”Decompilation always necessitates a translation
(and thus a fortiori a reproduction) of the object code into the source code
Decompilation is necessary for the interoperability between programs : i.e. possibility to connect computers of different creators so
that they can use the same software on different hardware
Possibility for different programs to function together – to ‘understand each other’
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Art. 6: decompilation
Conditions: art. 6.1: no authorisation required for reproduction or translation of code
(1) if indispensable (>< necessary) to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs
(2) if done by ‘lawful user’: "these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so"
(3) "the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a); and
(4) "these acts are confined to the parts of the original program which are necessary to achieve interoperability".
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Art. 6: decompilation
Art. 6.2: "The provisions of paragraph 1 shall not permit the information obtained through its application:
(a) to be used for goals other than to achieve the interoperability of the independently created computer program;
(b) to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright."
Art. 6.3: TST < Berne Convention art. 9(2) and 13 TRIPS - (BUT not exactly Berne/TRIPS wording because says "or" and not "and").
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Art. 7 - 8
Art. 6: strict conditions >< fair use USA (Sega v Accolade)
Art. 7: Member States must provide sanctions + anti-circumvention provision
Art. 8 – repealed (life + 50 years -> life + 70 years, see Term Directive)
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Art. 8 (ex 9): other legal provisions
Directive without prejudice to other forms of legal protection including:PatentsTrade marksTrade secretsUnfair competitionContracts
contract terms contrary to Articles 5(2), 5(3) and 6 void – thus art. = imperative
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Areas left unharmonised by Directive
Moral rights – but all Member States must respect Berne convention (art. 6 bis)
Ownership not fully harmonised (minimal requirements only)
Contracts (licences, transfers) – but some exceptions are rendered imperative, thereby harmonising contractual relations indirectly (see above)
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Commission’s Report on Implementation of Directive
submitted 10 April 2000 Positive evaluation: Directive has
reduced piracy and sector has grown
Softwarová – 22 Dec. 2010
Bezpečnostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury
Q1: is a computer program’s GUI a form of expression of that program and therefore protected as a computer program?
No because the GUI does not enable reproduction of program, but merely constitutes one element of that program by means of which users make use of the features of that program.
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Softwarová
But GUIs can be otherwise protectable by copyright: as long as the GUI constitutes the author's own intellectual creation.
Problem = may mean that any creation of the mind, provided it is its author's own intellectual creation, is protectable by copyright. However, clear that Directive did not harmonize originality criterion even less the concept of work.
Ruling in Softwarová may be construed in a way that eliminates the British and Irish system of categorization of works.
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Softwarová
Q2: is TV broadcasting of GUI communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive.
No because in a television broadcast, GUI loses its interactivity. Viewers only receive GUI in a passive manner. => TV broadcasting of GUI is not a communication to the public of a work protected by copyright
?? Since when should a copyright work be functional or perform a function (here interactivity)?
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The protection of databases
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History of database debate
80’s-90’s – notion of originality + digitisationFeist case, other cases in EuropeCommission launched Green Paper on
challenge of digital technology 1988Directive 1996 Aborted Treaty 1996USA – several bills 1996-2004 all failedWCT art. 5 (copyright)
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Directive – main features
(1) Harmonisation of copyright protection of databases
(2) Creation of an exclusive sui generis right (SGR)
SGR provides protection against unauthorised extraction and re-utilisation of databases Esp. where their originality is insufficient to qualify for
copyright protectionThis enables database makers to protect their
investment of time, money and effort, irrespective of whether the database is, in itself, creative.
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Main reasons for Directive
copyright only protects structure, not content, at least in continental Europe, protection not enough - originality threshold difficult to reach for databases
law of unfair competition not the solution mainly because of considerable differences between MS => impossible to harmonise law of unfair competition, thus creation of SGR
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Structure of Directive
4 chapters, 60 recitals, 17 articlesChapter I - Scope (art. 1 & 2) – definition
of databaseChapter II - Copyright (art. 3-6) –
continental author’s rights, provisions very similar to software Directive, see above
Chapter III – Sui Generis Right (art. 7-11)Chapter IV - Common Provisions (art. 12,
14-16)
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Content and structure
‘Containing’ = structure, architecture (skeleton)
Content = data, elements (flesh)4 types of databases:
© + SGR © – SGRSGR – © No © and no SGR
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Decisions Fixtures Marketing and British Horseracing Board - ECJ
List of football matches and horseracing fixtures organised by FM and BHB – are they databases protected by the sui generis right?
Decisions - 9 November 2004Different notions interpreted by ECJ =>
harmonises protection in the 27 countries, clarifies and restricts the scope of the right
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Definition of « database »
Any form – paper, tape, electronic (off ou online)
« a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means» (art. 1).
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Definition of database
- Criteria of independence, arrangement and accessibility
- Independence: elements must be separable from each other and their informative, literary, artistic, musical or other value must not be affected => novels, films are not databases
- An independent element must have an autonomous informative value
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Definition of database
Arrangement: not necessary for the elements to be physically stored in an organised way so long that there is a table of contents, index or other classification which allows the localisation of the elements.
Accessibility: not clear, redundantNB: computer programs used in the production
or operation of a database cannot be databases but other computer programs yes (although will be rare) and lists internal to a program (eg Mars UK Ltd v. Teknowledge Ltd [2000] FSR 138)
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Fixtures Marketing and BHB – ECJ decisions
A football fixture is a database - Fixtures v Opap
“The term database (…) refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.”
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Examples of protectable databases
collections of novels, poems, films, musical works and of computer programs, lists of data within computer programs, football fixtures lists (i.e. the compilation of date, time and identity of teams in particular matches), horse racing fixtures lists, indexes, thesauruses, bibliographies, newspapers, journals, reviews, customer lists, geographical maps, collections of hyperlinks, web pages, web sites (unless their several pages can be said to be dependent on each other), libraries, results of sport competitions, …
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Examples of protectable databases
… commercial and legal information on undertakings, timetables, cinemas listings, list of self help groups, televisions listings, telephone directories, classifieds, list of properties for sale, lists of email addresses, collections of recipes, lists of towns, weekly hit parades, collections of legal texts, trade fair catalogues, lists of financial reports and data, lists of pharmaceutical products with their notices.
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Examples of things which cannot be databases novels, films, musical works, sound recordings, computer
programs used in the making or operation of a database (at least those protected by copyright), collections in which the contents are calculated from other contents (e.g. a stock market database displaying averages of share prices calculated from the individual share prices which form its contents because elements are not independent), the genome of plants or animals and genes (constituted by A, C, G and T amino-acids) for lack of independence of their elements, the Internet (because it lacks systematic or methodical arrangement).
“Multimedia works that feature dynamic interfaces or which display their contents in a highly interrelated and integrated way will have difficulty satisfying the definition of a “database”. Whereas reference type multimedia works are far more likely to fall within the definition of “database”.” Aplin 2005.
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Copyright – art. 3-6
Originality: “Databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.” (art. 3.1.)
No right in contents – art. 3.2
Criterion of originality
Football Dataco v Britten pools et al (2010) RPC 17
A football fixture can be protected by copyright but not by the sui generis right
There is, even if a small amount, creativity – the court uses the terms ‘judgement, taste and discretion’ to describe the requirement of the author’s own intellectual creation
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Copyright – art. 3-6
“The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the right holder by that legislation” – art. 4.1
Joint authorship => joint ownership possible
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Art. 5 – rights
“…the exclusive right to carry out or to authorize: (a) temporary or permanent reproduction by any means and in any form, in whole or in part; (b) translation, adaptation, arrangement and any other alteration; (c) any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; (d) any communication, display or performance to the public; (e) any reproduction, distribution, communication display or performance to the public of the results of the acts referred to in (b).”
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Art. 6 – exceptions
Art. 6.1. – mandatory exceptionacts necessary for the purposes of access
to and normal use of the contents of the database
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Art. 6 – exceptions
Art. 6.2: Optional exceptions “(a) in the case of reproduction for private purposes of a
non-electronic database; (b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; (c) where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure; (d) where other exceptions to copyright which are traditionally authorized under national law are involved, without prejudice to points (a), (b) and (c).”
+ TST (“or”) – art. 6.3
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Sui Generis Right
Object of protection (art. 7)Characteristic of SGR : art 7.3 – right can
be licensed or transferred => property rightcriterion for a database to benefit from
SGR = substantial investmentDefinition: quantitative or qualitative
substantial investment in obtaining, verification or presentation of contents
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Substantial investment
Nature of investment = material, financial or human (cons. 40) (para. 44 OPAP)
Level of investment : definition of « substantial »: high, low? And of « quantitatively » or « qualitatively »
Object of investment: obtaining, verifying or presenting contents
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Fixtures Marketing and BHBSubstantial investment in obtaining…
Obtaining means collecting not creating “The expression ‘investment in … the obtaining … of the
contents’ of a database must (…) be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.”
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Fixtures Marketing and BHBSubstantial investment in obtaining…
“The expression ‘investment in … the … verification … of the contents’ of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation.”
“The expression ‘investment in … the … presentation of the contents’ of the database concerns, for its part, the resources used for the purpose of giving the database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility.”
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Fixtures Marketing and BHBSubstantial investment in obtaining…
“Investment in the creation of a database may consist in the deployment of human, financial or technical resources but it must be substantial in quantitative or qualitative terms. The quantitative assessment refers to quantifiable resources and the qualitative assessment to efforts which cannot be quantified, such as intellectual intellectual effort or energyeffort or energy”
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Fixtures Marketing and BHBSubstantial investment in obtaining…
“The resources deployed for the purpose of determining, in the course of arranging the football league fixtures, the dates and times of and home and away teams playing in the various matches represent an investment in the creation of the fixture list. Such an investment, which relates to the organisation as such of the leagues is linked to the creation of the data contained in the database at issue, in other words those relating to each match in the various leagues. It cannot, therefore, be taken into account under Article 7(1) of the directive.”
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Fixtures Marketing and BHBSubstantial investment in obtaining…
“Finding and collecting the data which make up a football fixture list do not require any particular effort on the part of the professional leagues”
“Obtaining the contents of a football fixture list thus does not require any investment independent of that required for the creation of the data contained in that list.”
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Fixtures Marketing and BHBSubstantial investment in obtaining…
“The professional football leagues do not need to put any particular effort into monitoring the accuracy of the data on league matches when the list is made up because those leagues are directly involved in the creation of those data”
“The presentation of a football fixture list, too, is closely linked to the creation as such of the data which make up the list. It cannot therefore be considered to require investment independent of the investment in the creation of its constituent data.”
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Substantial investment – level
Not defined by ECJ - low level => easy to obtain protection Ex: UNMS c. Belpharma: two persons listed self help group, for
10 years, sent questionnaires to them and verified that data was up to date
Limit: Alphabetical classification – no substantial investment A small collection of addresses or of bons mots fortuitously
made (AG Rostock, 20.02.2001, Datenbankeigenschaft von Hyperlinksammlungen)
No protection: when a producer receives the content of the database from its clients (he does not collect nor verifies nor presents (or he presents the information but there is no substantial investment) (Groupe Moniteur c. Observatoire des Marchés Publics)
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Extraction and re-utilisation - I
Art. 7.2: Extraction: temporary or permanent transfer of all or a
substantial part of the contents of a database to another medium by any means or in any form
Does not mean that the original must have disappeared
Parallel to reproduction right in copyright law
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Extraction and re-utilisation - II
Art. 7.2: Re-utilisation: any form of making available to the public all or
a substantial part of the contents of a database by distribution of copies, renting, on-line or other forms of transmission
Very broad: covers Internet, live communication, basically any communication
Parallel to communication right in copyright lawExtraction and re-use do not cover the
consultation of a database
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BHB – substantial part
“The expression ‘substantial part, evaluated … quantitatively, of the contents of [a] database’ (…) refers to the volume of data extracted from the database and/or re-utilised and must be assessed in relation to the total volume of the contents of the database. “
“The expression ‘substantial part, evaluated qualitatively … of the contents of [a] database’ refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database.”
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Repeated and systematic use
Art. 7(5):Repeated and systematic extraction or re-
utilisation of insubstantial parts of the contents of the database (which conflict with normal exploitation or unreasonably prejudice the legitimate interest of the maker) are prohibited
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BHB – art. 7(5)
“Article 7(5) (…) refers to unauthorised acts of extraction or re-utilisation the cumulative effect of which is to reconstitute and/or make available to the public, without the authorisation of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.”
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Exceptions
Copyright (art. 6) SGR (art. 7, 8 & 9)
6 §1. Any act listed in art 5 that is necessary for access and normal use
8 §1 Extraction / re-utilisation of insubstantial parts by lawful user for any purpose (// art. 6§1)
6 §2. (a) Reproduction for private purposes of non-electronic database
9 (a) Extraction for private purposes of non-electronic database (// art. 6§2(a))
6 §2. (b) Use for sole purpose of illustration for teaching or scientific research + source + non commercial purpose
9 (b) Extraction for purposes of illustration for research or scientific research + source + non commercial purpose (// art. 6 §2 (b)
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Exceptions
Copyright (art. 6) SGR (art. 7, 8 & 9)6 §2. (c) Use for purpose of public security or admin or judicial procedure
9 (c) extraction and/or re-utilisation for purpose of public security or admin or judicial procedure (// art. 6 §2 (c))
6 §2. (d) Other national traditional copyright exceptions (without prejudice of points (b) and (c))
8 §3 - lawful user cannot prejudice the holder of a copyright or related right in respect of works of database
6 §3. Three step test: not unreasonably prejudice to right holder's legitimate interests or conflicts with normal exploitation of the work
8 §2 // 6§3
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Art. 10: term of protection
SGR = 15 years renewable: i.e. additional 15 years if substantial
(qualitative or quantitative) change in database which would be considered a new substantial investment
Consequence: dynamic databases may qualify indefinitely for protection
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Art. 11: beneficiaries (SGR)
Database makers nationals of Member States or habitual residence in the EU - see art. 11
Database maker: copyright and rights in database regulations 1997 reg. 14(1): “the person who takes the initiative in obtaining, verifying or presenting the contents of the database and assumes the risk in investing in that obtaining, verification or presentation
Employee in course of employment -> ownership to employer (unless agreement to the contrary) reg. 14(2)
Joint ownership if two or more persons collaborate to initiate and assume risk (reg. 14(5))
Misc.
Art. 12: Member States must provide sanctions to infringements
Art. 13: other legal provisions - leaves intact the protection by unfair competition, contracts, trade marks, trade secrets, etc.
Art. 15: art. 6(1) and 8 DBD are imperative – not possible to derogate by contract
British Horseracing Board v. William Hill (2004); Directmedia v. Albert-Ludwigs-Univ.Freiburg (2008) and APIS v Lakorda (2009, case C-545/07)
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Apis v Lakorda
Q 2. Which criterion is to be applied in interpreting the concept ‘extraction of a substantial part, evaluated quantitatively’ if the databases are divided into separate subgroups and are used in these subgroups, which are independent commercial products?
Determine if that module is a database itself and is protected. If yes, then “the volume of materials allegedly extracted and/or reutilised from the module concerned must be compared with the total contents solely of that module”
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