Dr Lai's book presents a well written, comprehensive and detailed exposition. There is no question that Dr Lai's book amounts to a definitive resource for intellectual property lawyers, academics and researchers both in the UK and elsewhere.
What is software? Can software be patented? What can we do instead? Can we copyright it? Is protection international? So what is best? Does copyright do the job? The aim of this report is to highlight the current levels of protection afforded to computer programs nationally and internationally within the legal framework.
The scale of software piracy is immense and almost impossible to quantify but while researching an article for Computer Weekly  , reporter Neil Fawcett acquired a CD which. A further example was the availability of pirated copies of Windows 95 days before the official release by Microsoft and available at a fraction of the cost.
Software is generally accepted to be any set of instructions made in to a program, or a suite of instructions, which can be installed or removed from the computer by the operator. Data is raw information which is not a set of instructions but is information required by the program to complete its function. This is only a general definition because there are grey areas such as the Gameboy and SEGA games which use protected programs for playing on their machines. If professionals in the industry have problems defining computer components how can we justifiably expect the courts and judges to do just that.
Patent is a very desirable form of intellectual property because it gives the owner a monopoly in an invention, enabling him to exploit the invention for a number of years to the exclusion of other people. Patent has a long history and has developed as a means of protecting innovation which has a benefit to innovator and public alike.
The process for granting a Patent is awkward, and is probably best put in the hands of a suitably qualified agent such as a 'Patent Agent' or 'Patent Attorney'. Once granted a Patent runs for four years and is renewable, at a cost, annually up to a maximum of twenty years. Patent gives the innovator a monopoly of that innovation in return for transferring details into the public sphere. These details include the fact that it is capable of industrial application, Section 1 1c Patent Act  PA.
Thus we find that computer software is not patentable in its own right, but only as a part of an industrial process. This was identified in Diamond v Diehr   a case which involved a process for curing rubber, and included a computer program to control the curing temperature. The court found that the program was patentable only as part of the whole process. Thus the court followed the decision in Diamond v Diehr . The UK and European courts seem to have agreed with their US counterparts and the decisions followed Diamond v Diehr  in such cases as, Merrill Lynch's Application   which involved a software package for use on the money market and was found not to be patentable as a total package as it does not actually do anything as a whole system machine.
JILT 1996 (3) - Philip Redding
Here the question concerned whether the inventive step comes from the excluded material, then the invention is not patentable because of P. A2E S1 2. As Falkener J said. S1 2 , even if the practical application might be obvious once the discovery had been made'. Thus it would appear that whilst a patent will be refused for a computer program per se or any of the other exceptions in P.
S1 2 it will be allowed if the purpose of the program is to bring about some practical effect and it is that effect which is the subject matter of the patent application. The subject matter should make a technical contribution to the state of the art. In Vicom Systems   a digital image processing package was patentable as it incorporated a complete system.
Nissan's Application patent application The applicant sought to show that its application for a patent for a method, and apparatus, for evaluating designs composed of different design elements should not be refused and that it represented something more than a computer program per se or a scheme, rule or method for performing a mental act.
However, in the case of computer programs, a patent may be granted where the operation of a program produces a technical effect which is itself an advance over the prior art. Held: 1 The Principle Examiner found that the application was, in substance, an application for a patent of a computer program which produced no technical effect. As such it was not entitled to patent protection; 2 The function performed by the program represented a method for performing a mental act and was therefore not entitled to patent protection; 3 Patents which had been granted in particular areas were of no precedent value unless the patents relied upon had been legally tested.
Computer programmes themselves cannot be protected by patent law though there have been and will continue to be attempts to prove otherwise. Patents are slow, and tedious in their application and formulation taking approximately 4 years to be obtained by which time it is likely that the computer programme would be out of date.
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There are options available to companies to protect their software against piracy, and each is best understood by explanation alongside the respective consumer market. The main areas which can be used for protection, are copyright law, contractual and or licence agreements, and password protection of some form.
A company who creates a specialised piece of software for a possible market of up to users may deem it useful to retain all rights of ownership to that software, and can do so by leasing the software on a contractual basis and ensuring protection by copyright. Each user would then have an individually registered copy of the software and a log would be kept along with the signed documentation covering use and trade secret law. A company which creates a piece of software for the large commercial market such as MS DOS copyrighted to Microsoft and Bill Gates needs to protect its commercial value in a slightly different way, by copyright, and, through the use of licence agreements which restrict the use of that software to whatever specified on the licence.
An author who creates a piece of software for the home and business market, such as a computer game retails in a different manner and has to protect his software in a different method. He generally sells his software through retail outlets and is looking for mass market penetration, and retail figures in the millions.
The Copyright Protection of Computer Software in the United Kingdom
Though the author may still protect his software by copyright his primary concern is to attempt to foil the pirating of the software on an individuals P. In practice he does this by shrink wrapping the item prior to sale and permitting access to the software via a password protection of some description.
In my experience I have found that the best system is one which entails having the manual on hand when using the software, for at relevant times the password is requested, and it is found on a certain page, paragraph, line, and word. This means that in order to use the pirated software the whole manual has to be copied as well, and this proves time consuming and costly to most end users. The major problem with this markets legal resolution to piracy is timescales, in that the market changes rapidly and a mass marketed piece of software is likely to be out of date within a few years, if not months.
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There is one area of protection which is legally ill-defined - where the author when writing the program includes in it a virus which inflicts damage on the P. Though there is little law to verify the legality of this protection I know of at least one piece of software which incorporates this function, and have been reliably informed this encoded virus managed to delete the entire contents a regional health authorities on-line storage system.
So a computer program is not patentable per se, yet is protected by copyright as a case of individual thought and effort. There is also the Law of Confidence and this can be remarkably successful in protecting trade secrets, and has no time limitation. Such success can be found in the food and drink industry with companies such as Coca-Cola and Kentucky, who have not copyrighted the ingredients nor attempted a patent but have relied on the law of confidence and secrecy to retain their market share.
The Law of Confidence as a common law approach is remarkedly more adaptable, its counterparts Copyright and Patent are statute bound yet is restricted in its influence to that of confidentiality and reaches thereof. Copyright protects a wide range of works and has developed enormously since its early beginnings as a form of controlling printing in the early 16 th Century.
Copyright has a pragmatic approach an d its coverage extends to all manner of works regardless of quality, subject to some basic requirements, which are easily satisfied. Since the end of the 19 th Century, tables, compilations and even code books have been the subject matter of copyright law.
During the 20 th Century, copyright has flourished and now includes under its umbrella: photographs, films, broadcasts, sound recordings as well as computer programs and works stored in or produced by or with the aid of a computer. The practical developments of copyright has been supported by judges who are generally sympathetic to the principle of protecting the results of a persons labour, skill and effort.
This amended the Copyright Act  CA in its application to computer programs and computer storage by detailing in S1 1 that the CA protection of a literary work shall be applied to a computer program. This was, however, only designed to offer computer programs protection as though they were a literary work. Computer programs are specifically defined as a literary work in the CDPA S3 1 b , and S12 3 specifies computer generated works.
About Copyright Protection of Computer Software in the United Kingdom
Computer programs then can be protected by copyright and the common law of confidence, but not by patent. The period of protection for a copyright program is Fifty years from the end of the calendar year in which the author dies, and if computer generated then S12 the period is again fifty years but from the end of the calendar year in which the work was made.
Having found that computer programs are protected by copyright for fifty years, question is raised of its effect and how this protection is supported by the law in general. Until recently the courts have followed the so called Abstraction - Filtration - Comparison test to find if there has been any breach of copyright. This test was formulated in the USA Court of Appeals decision in Computer Associates Inc v Altai Inc   , after criticising the approach from Whelan v Jaslow   as being 'conceptually overbroad' and 'descriptively inadequate' . The abstraction element of the test is an abstract analysis of the complete work, dividing the program into components and identifying the relationship between those various components, and their interaction.
The filtration test examines the result of the abstraction test and identifies those elements which fall outside the scope of copyright protection. This stage also identifies the common elements of the many programs which have the same characteristics, these include interfaces to other machines, design standards of computer manufacturers, and methods of operation such as the pull down menus found in Lotus Development v Borland  . The final stage is to identify any elements which fall into the public domain. Cadbury UK Limited.
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