Copyright Deficiencies in the Protection of Software - Can Patent Pick Up where Copyright Drops Off?

Patent and copyright are areas of law that have developed independently of one another over centuries to protect different forms of intellectual property. Patent traditionally protected truly creative functional inventions whereas copyright protected creative literary (non-functional) works of authorship.

The difficulty the courts had with protecting software with copyright was evidenced by a mantra that arose after a decision in the Chancery Division of the Commercial Court Lord Justice Lindley said in Hollinrake v Truswell [ 894] 3 Ch 420, at 427:

“Copyright does not extend to ideas, or schemes, or systems or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.”

Application to Software

There is particular difficulty in distinguishing an idea from its expression in the case of a utilitarian work, such as a computer program which in contrast to literary works of an artistic kind, is intended to be useful rather than to please.

It has been held that the idea of a utilitarian work is its purpose or function, and that the method of arriving at that purpose or function is the expression of the idea. Thus when an expression of an idea is inseparable from its function, it forms part of the idea and is not entitled to protection of copyright.

Comment

Both patent and copyright law seeks to provide an incentive for creative works desired by society and provides recognition of the work created. The public benefits through being able to build on these inventions and creations to advance society and cultural interests for the overall benefit of society.

Copyright and patent law are two mutually exclusive schemes of intellectual property protection. Patents must be narrowly claimed, thus the ambit of protection is narrow, but absolute. Copyright on the other hand applies automatically on recording of the work. The monopoly is qualified by protecting only the expression and substantial parts of the expression by reference to the skill and labour invested in creating it.

Types of Intellectual Property

The different types of works in which intellectual property vest are best protected by the areas of intellectual property designed to protect it. There is no question that patent law grant powerful rights to prevent exploitation of an invention that infringes the claims set out in the patent. Copyright has a role to play in the protection of software, it is protects 1. against copying of entire programs, 2. collections of programs and 3. substantial parts of the individual programs and collections of programs. As a result broad protection is available to safeguard the interests of software houses and where available both should be utilized. Registered designs provides a further area of protection, again for visual aspects of screen displays that are new, original.