The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

Copyr i ght Prot ec t i on of Compu t er So f twa re in I reland

by Michael Vallely BCL BL LLM (Lond)*

program are not protected. The reference to expression in effect incorporates the copyright legal idea/expression dichotomy, found in the USA 4 and the United Kingdom, into European Union law and therefore into our domestic legislation. This dichotomy, in basic terms, gives no protection to ideas behind a work but it does afford protection to the expression of the idea. It will be up to the courts to draw the line in each individual case where an idea ends and the expression begins and each judicial interpretation of this demarcation will underscore when copying has occurred or not. Interfaces which allow a program to interoperate with other software or hardware are specifically excluded from protection. This removal of protection appears to be aimed at lower level interfaces of programs with hardware and other programs than higher level interfaces such as the interfaces that guide users through programs which may still receive protection. It will be up to the courts to draw the line in each individual case where an idea ends and the expression begins A computer program shall be protected if it is the author's 'own intellectual creation'. Generally, in copyright law, a work to be protected must be original, and sometimes a further aesthetic test must be passed in order to qualify as an original work. The preamble to the Directive expressly excludes any qualitative or aesthetic tests in deciding on originality. This 'own intellectual creation' requirement which stems from French copyright law, appears therefore to demand quite a low standard of originality, similar to that employed in the United Kingdom, which affords protection for works that are simply not copied from others or are as a result of a person's own skill, labour, and effort. In the English case of University of London Press

This article takes the reader step- by-step through the EU Directive on the legal protection of computer programs and the Statutory Instrument incorporating it into domestic law and notes its expected effect on the 1963 Irish Copyright Act.

EU Directive for Legal Protection of Computer Programs

Copyright, is, in essence, a right given to creators of works such as novels, paintings, musical compositions, plays etc., to control the copying or other exploitation of their works. In Ireland there is a remarkable dearth of litigation or literature on the legal protection of rights in software despite the importance of the software industry. Yet, it is estimated that the current value of the software industry to Ireland is £2 billion per annum. 1 The touchstone for Irish software protection is found in the rather outdated 1963 Copyright Act, which certainly could not anticipate the advent of the computer program and the problems of protecting it as a copyright work. This - the Principal Act - in s8, affords copyright protection to every original literary, dramatic or musical work. Other jurisdictions, including the United Kingdom, in the Copyright Design and Patent Act 1988, have rather artificially protected software as a literary work considering it a written table or compilation; and s2 of our Principal Act, like the United Kingdom statute, defines a literary work as including any written table or compilation. However, the Irish courts will not be required to decide whether copyright in software can be protected as a literary work as the EU has intervened, and produced a Directive dealing specifically with computer programs. 2

Michael Vallely Council Directive 91/250/EEC. This Directive on 1 January 1993 - the opening day of the single market - required all Member States, including Ireland, to bring in an equivalent protection for the copyright protection of computer programs as literary works. The statutory instrument S.I. No. 26 of 1993 entitled: European Communities (Legal Protection of Computer Programs) Regulations 1993, incorporating the Directive into Irish law, is now the prime source of law for software companies who wish to protect their creations against software pirates or competitors to their packages. Regulation 3 of Statutory Instrument. There is no definition of computer program but it is stated that expression in any form of a computer program will be protected. A useful description of a computer program is found in the Australian Federal Court case of Apple Computer Inc. & Another -v- Computer Edge Property Ltd ' which said 'A program is a concise set of instructions that directs the computer to do the tasks required of it step by step and to produce the desired result'. However, the ideas and principles underlying any element of a computer What is protected? Article 1 of the Directive and

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