The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

Limited -v- University Tutorial Press Limited* Judge Peterson said: "The word 'original' does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of 'literary works' with the expression of thought in print or writing. The originality which is required relates to the expression of thought. But the Act does not require that the expression must be an original or novel form, but that the work must not be copied from another work i.e. it should originate from the author". And in Independent Television Publications Ltd V Time Out Ltd) TV programme listings were held to be an original literary work because of the time and effort spent in devising them. It is important to note that sub- stantial modifications and improvements to a computer program already in existence may result in the creation of a fresh work that will itself be protectable as an original copyright work. Authorship and Ownership of Computer Programs Articles 2 and Regulation 3 and 4. The owner or author of the copyright, is the person or business who creates the computer program and where a work is produced by a group of persons, which is typical in software production, the rights in the computer programs will be owned jointly. An employee who creates a computer program does so for the benefit of the employer unless other- wise provided by contract. Regulation 4 expressly provides that works created in the employment of newspapers, magazines or other periodicals will belong to the employee contrary to slO (2) Copyright Act 1963. The Directive is surprisingly silent on the ownership of commissioned software works which is the most common business arrangement for custom made packages, and it is assumed that the works will belong to the software house developing the work, unless, as with employees, a contract provides that copyright belongs to the software company who commissions the work. Who is Entitled to Benefits of Software Protection? Article 3. Protection is granted to all

| natural or legal persons eligible under national copyright legislation as applied to literary works. The Primary Act affords the spoils of copyright in s7 (5) to qualified persons, who in the case of individuals, must be Irish citizens either domiciled or resident within the State, and in the case of a corporate body incorporated in Ireland. What Rights does the Owner of the Copyright Actually Have? Article 4. Traditionally copyright gives the copyright owners of the work a set of negative rights to prevent others copying their works or in dealing with the works. These restricted acts in Article 4 and Regulation 5 are: a) not to reproduce the computer program by any means and in any form either temporarily or permanently; (this will include the use of pirated disks by users who when starting to run a program will have to copy the program, perhaps just momentarily, to their own computer) b) not to translate, adapt, arrange or otherwise alter the computer program and the copying of such results; c) not to distribute the computer program to the public including rental of the software. (Once a computer program is lawfully put on the market in any Member State, by either the owner of the copyright or with his consent, the copyright owner will be considered to have exhausted his distribution rights to the public and therefore will not be able to prevent any other person selling or distributing the work in other Member States. However, he will still be able to prevent others renting the computer program or copies of it to the public.) j There are some important exceptions to the protected acts above which are found in Article 5 and Regulation 6 and 7 j [

program if necessary to use it but this right is confined to lawful acquirers of the copyright such as purchasers or licencees. This right includes error correction, but will not apply where contractual provisions exclude it. The preamble to the Directive states that such acts are permitted only where technically necessary, which would certainly exclude casual copying or copying for commercial gain. A5 (2) It is permitted to make a back- up copy of the work which is generally done by users in the event of a disk failing, and this right may not be excluded by contract. This back-up right is already found in most - if not all - software packages. A5 (3) It is permitted to observe, study and test the functioning of protected computer programs in order to determine their underlying ideas and principles - which as we have already discussed are not protectable - but this right is also only afforded to those who have the right to use a copy of the program and will exclude competitors. This right to observe and study other works is already catered for in s 12 of the Principal Act which allows fair dealing with a protected copyright work. Decompiling of Computer Programs Article 6 and Regulation 7. These are the most contentious provisions affecting a software producer's copyright and are compromise provisions, following some intense lobbying throughout the passage of the Directive. Many software houses concentrate on creating computer programs that can be operated in conjunction with the products of the major suppliers of computer software and hardware and they obviously need to study these major products to ensure interoperability with their own packages. Generally in copyright, it is permitted to copy and translate the code of a protected computer program as long as separate teams are used by usually rival software houses - one to decompile the program in question and

i A5(l) A person can copy, translate, adapt, arrange or alter the computer

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