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Software copyright is the application of
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
in
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
to machine-readable
software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware, hardware, from which the system is built and which actually performs the work. ...
. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to
software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware, hardware, from which the system is built and which actually performs the work. ...
. Software copyright is used by
software developers A computer programmer, sometimes referred to as a software developer, a software engineer, a programmer or a coder, is a person who creates computer programs — often for larger computer software. A programmer is someone who writes/creates ...
and
proprietary software Proprietary software is software that is deemed within the free and open-source software to be non-free because its creator, publisher, or other rightsholder or rightsholder partner exercises a legal monopoly afforded by modern copyright and i ...
companies to prevent the unauthorized copying of their software. Free and
open source license An open-source license is a type of license for computer software and other products that allows the source code, blueprint or design to be used, modified and/or shared under defined terms and conditions. This allows end users and commercial compa ...
s also rely on copyright law to enforce their terms. For instance,
copyleft Copyleft is the legal technique of granting certain freedoms over copies of copyrighted works with the requirement that the same rights be preserved in derivative works. In this sense, ''freedoms'' refers to the use of the work for any purpose ...
licenses impose a duty on
licensees A licensee can mean the holder of a license or, in United States law, U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property ...
to share their modifications to the work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
.


National and supranational laws


Canada

In
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, software is protected as a
literary work Literature is any collection of written work, but it is also used more narrowly for writings specifically considered to be an art form, especially prose fiction, drama, and poetry. In recent centuries, the definition has expanded to include ...
under the Copyright Act of Canada. Copyright is acquired automatically when an
original work Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
is generated; the creator is not required to register or mark the work with the
copyright symbol The copyright symbol, or copyright sign, (a circled capital letter C for copyright), is the symbol used in copyright notices for works other than sound recordings. 17 U.S.C. The use of the symbol is described by the Universal Copyright Conv ...
in order to be protected. The rights holder is granted: the exclusiv
right of reproduction
the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of
Fair Dealing Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an en ...
; these exempt users from copyright liability covering usage and reproduction when performed for
research Research is " creative and systematic work undertaken to increase the stock of knowledge". It involves the collection, organization and analysis of evidence to increase understanding of a topic, characterized by a particular attentiveness ...
, private study,
education Education is a purposeful activity directed at achieving certain aims, such as transmitting knowledge or fostering skills and character traits. These aims may include the development of understanding, rationality, kindness, and honesty ...
,
parody A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its sub ...
or
satire Satire is a genre of the visual, literary, and performing arts, usually in the form of fiction and less frequently non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of shaming ...
. Changes to the Copyright Act in regard to digital copyright were debated in the Canadian Parliament in 2008. Bill C-61 proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, reverse engineering and
security testing Security testing is a process intended to reveal flaws in the security mechanisms of an information system that protect data and maintain functionality as intended. Due to the logical limitations of security testing, passing the security testing ...
.


China


East Germany

A 1979
East German East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until its dissolution on 3 October 1990. In these years the state ...
court ruling found that software was "neither a
scientific work : ''For a broader class of literature, see Academic publishing.'' Scientific literature comprises scholarly publications that report original empirical and theoretical work in the natural and social sciences. Within an academic field, scienti ...
nor a creative achievement" and ineligible for copyright protection, legalizing software copying in the country.


European Union


India

Software can be copyrighted in
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
. Copyright in software, in the absence of any agreement to the contrary, vests in the
author An author is the writer of a book, article, play, mostly written work. A broader definition of the word "author" states: "''An author is "the person who originated or gave existence to anything" and whose authorship determines responsibility f ...
of the software, even for commissioned works. Copyright can be assigned or licensed through a written document, but under the
Indian Copyright Act The Copyright Act 1957 as amended governs the subject of copyright law in India. The Act is applicable from 21 January 1958. The history of copyright law in India can be traced back to its colonial era under the British Empire. The Copyright Act 19 ...
, in case the period of assignment is not specified, the period is deemed to be 5 years from the date of assignment (section 19(5) of the Copyright Act). In a recent judgement in the case of Pine Labs Private Limited v. Gemalto Terminals India Private Limited the
Delhi Delhi, officially the National Capital Territory (NCT) of Delhi, is a city and a union territory of India containing New Delhi, the capital of India. Straddling the Yamuna river, primarily its western or right bank, Delhi shares borders ...
High Court has laid down that the copyright belongs to the author (in this case, Pine Labs) and as the period of assignment was not specified in the document of assignment (the
master service agreement A master service agreement, sometimes known as a framework agreement, is a contract reached between parties, in which the parties agree to most of the terms that will govern future transactions or future agreements. A master agreement delineates ...
), the copyright in the software reverted to Pine Labs after 5 years. See Assignment of Copyright in Software.


Pakistan

Under the provision of Copyright Ordinance 1962, works which fall into any of the following categories:
literary Literature is any collection of written work, but it is also used more narrowly for writings specifically considered to be an art form, especially prose fiction, drama, and poetry. In recent centuries, the definition has expanded to include ...
, musical, or
artistic Art is a diverse range of human activity, and resulting product, that involves creative or imaginative talent expressive of technical proficiency, beauty, emotional power, or conceptual ideas. There is no generally agreed definition of wh ...
are protected by Copyright law. The definition of literary work was amended by Copyright Amendment 1992 to include computer software. Section 2(p) of the ordinance defines a
computer program A computer program is a sequence or set of instructions in a programming language for a computer to execute. Computer programs are one component of software, which also includes documentation and other intangible components. A computer program ...
as "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information". In event of infringement, civil and/or criminal proceedings can be carried out. According to Chapter XIV of Copyright Ordinance, a person can face a prison of up to 3 years and/or a penalty of up to one hundred thousand
rupees Rupee is the common name for the currencies of India, Mauritius, Nepal, Pakistan, Seychelles, and Sri Lanka, and of former currencies of Afghanistan, Bahrain, Kuwait, Oman, the United Arab Emirates (as the Gulf rupee), British East Africa, B ...
if he is found guilty of
renting Renting, also known as hiring or letting, is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for a ...
computer software without permission of the owner. According to a study of
Business Software Alliance The Software Alliance, also known as BSA, is a trade group established by Microsoft in 1988 to represent commercial software makers. It is a member of the International Intellectual Property Alliance. Its principal activity is trying to stop cop ...
, 84% of software in Pakistan is being used in violation of the Copyright law of Pakistan.


United States

Copyright protection attaches to “ original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others. Copyright protects: *
literary Literature is any collection of written work, but it is also used more narrowly for writings specifically considered to be an art form, especially prose fiction, drama, and poetry. In recent centuries, the definition has expanded to include ...
works * musical works (& accompanying words) * dramatic works (& accompanying music) *
pantomimes Pantomime (; informally panto) is a type of musical comedy stage production designed for family entertainment. It was developed in England and is performed throughout the United Kingdom, Ireland and (to a lesser extent) in other English-speaking ...
and choreographed works * pictorial, graphic, &
sculptural Sculpture is the branch of the visual arts that operates in three dimensions. Sculpture is the three-dimensional art work which is physically presented in the dimensions of height, width and depth. It is one of the plastic arts. Durable sc ...
works *
motion pictures A film also called a movie, motion picture, moving picture, picture, photoplay or (slang) flick is a work of visual art that simulates experiences and otherwise communicates ideas, stories, perceptions, feelings, beauty, or atmosphere ...
& other
audiovisual Audiovisual (AV) is electronic media possessing both a sound and a visual component, such as slide-tape presentations, films, television programs, corporate conferencing, church services, and live theater productions. Audiovisual service pr ...
works *
sound recordings Sound recording and reproduction is the electrical, mechanical, electronic, or digital inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of sound recording t ...
* architectural works + compilations and derivative works 17 USC § 103(a). In the United States, computer programs are literary works, under the definition in the Copyright Act, .Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)
/ref> There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for
computer programs A computer program is a sequence or set of instructions in a programming language for a computer to execute. Computer programs are one component of software, which also includes documentation and other intangible components. A computer program ...
prohibits not only literal copying, but also copying of "nonliteral elements", such as program's structure, sequence and organization. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves."Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) In '' Computer Associates vs Altai'', the
Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
proposed the
Abstraction-Filtration-Comparison test The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have ...
for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely
utilitarian In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals. Although different varieties of utilitarianism admit different charac ...
and the public domain. Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101. Circuits differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982) The set of operations available through the interface is not copyrightable in the United States under '' Lotus v. Borland'', but it can be protected with a
utility patent This is a list of legal terms relating to patents. A patent is not a right to practice or use the invention, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or his successor in rights i ...
. The law is unclear as to whether transient copies such as those cached when transmitting digital content, or temporary copies in a computer's
RAM Ram, ram, or RAM may refer to: Animals * A male sheep * Ram cichlid, a freshwater tropical fish People * Ram (given name) * Ram (surname) * Ram (director) (Ramsubramaniam), an Indian Tamil film director * RAM (musician) (born 1974), Dutch * ...
are “fixed” for the purposes of copyright law. The
Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.” In ''
Apple v. Microsoft ''Apple Computer, Inc. v. Microsoft Corporation'', 35 F.3d 1435 (United States Court of Appeals for the Ninth Circuit, 9th Cir. 1994), was a copyright infringement lawsuit in which Apple Computer, Inc. (now Apple Inc.) sought to prevent Microsoft ...
'', the courts established that a
look and feel In software design, the look and feel of a graphical user interface comprises aspects of its design, including elements such as colors, shapes, layout, and typefaces (the "look"), as well as the behavior of dynamic elements such as buttons, boxe ...
copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.


History

Historically,
computer programs A computer program is a sequence or set of instructions in a programming language for a computer to execute. Computer programs are one component of software, which also includes documentation and other intangible components. A computer program ...
were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object:
object code In computing, object code or object module is the product of a compiler In computing, a compiler is a computer program that translates computer code written in one programming language (the ''source'' language) into another language (the ...
was viewed as a utilitarian good produced from
source code In computing, source code, or simply code, is any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the w ...
rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code.Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34 This analogy caused the Copyright Office to issue copyright certificates under its Rule of Doubt. In 1974, the Commission on New Technological Uses of Copyrighted Works ( CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's original creation, are proper subject matter of copyright."Apple Computer, Inc. v. Franklin Computer Corporation Puts the Byte Back into Copyright Protection for Computer Programs
in Golden Gate University Law Review Volume 14, Issue 2, Article 3 by Jan L. Nussbaum (January 1984)
In 1980, the United States Congress added the definition of "computer program" to and amended to allow the owner of the program to make another copy or adaptation for use on a computer.Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 35 This
legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to ...
, plus court decisions such as '' Apple v. Franklin'' in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via the doctrine of first sale (see '' Step-Saver Data Systems, Inc. v. Wyse Technology''). These
software license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...
s are often labeled as end-user license agreements (
EULA An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...
s). Another impact of the decision was the rise of the shrink-wrap
closed source Proprietary software is software that is deemed within the free and open-source software to be non-free because its creator, publisher, or other rightsholder or rightsholder partner exercises a legal monopoly afforded by modern copyright and inte ...
business model, where before a
source code In computing, source code, or simply code, is any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the w ...
driven software distribution schema dominated. In 1998, The United States Congress passed the
Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...
(DMCA) which criminalizes evasion of copy protection ( with certain exceptions), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. In addition, the
DMCA The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...
extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."


EULAs and rights of end users

The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes. Furthermore, "owners of copies" have the right to resell their copies, under the
first sale doctrine The first-sale doctrine (also sometimes referred to as the "right of first sale" or the "first sale rule") is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellec ...
and . These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping . American courts have taken varying approaches when confronted with these
software license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...
s. In ''
MAI Systems Corp. v. Peak Computer, Inc. ''MAI Systems Corp. v. Peak Computer, Inc.'', 991 F.2d 511 (9th Cir. 1993), was a case heard by the United States Court of Appeals for the Ninth Circuit which addressed the issue of whether the loading of software programs into random-access memo ...
'', '' Triad Systems Corp. v. Southeastern Express Co.'', and ''Microsoft v Harmony'',Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994) various Federal courts held that "licensed, not sold" language in an
EULA An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...
was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).
/ref> The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft Corp. v. DAK Industries, Inc.Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995) By contrast, in the
European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...
the European Court of Justice held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on first sale as ownership is transferred, and questions therefore the "licensed, not sold" EULAs in the EU.


Fair use

Fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
is a defense to an allegation of
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
under section 107 of the Copyright Act of 1976. This section describes some of the uses of copyrighted software that courts have held to be fair. In '' Galoob v. Nintendo'', the
9th Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
held that modification of copyrighted software for personal use was fair. In '' Sega v. Accolade'', the 9th Circuit held that making copies in the course of reverse engineering is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access". The Supreme Court ruled in '' Google LLC v. Oracle America, Inc.'' (2021) that the reuse of
application programming interfaces An application programming interface (API) is a way for two or more computer programs to communicate with each other. It is a type of software interface, offering a service to other pieces of software. A document or standard that describes how ...
(APIs) including representative
source code In computing, source code, or simply code, is any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the w ...
can be transformative and fall within fair use, though did not rule if such APIs are copyrightable.


Copyleft

A
copyleft Copyleft is the legal technique of granting certain freedoms over copies of copyrighted works with the requirement that the same rights be preserved in derivative works. In this sense, ''freedoms'' refers to the use of the work for any purpose ...
is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.


See also

*
Copyright infringement of software Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
*
Free software license A free-software license is a notice that grants the recipient of a piece of software extensive rights to modify and redistribute that software. These actions are usually prohibited by copyright law, but the rights-holder (usually the author) ...
*
Software license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...
*
Software patent A software patent is a patent on a piece of software, such as a computer program, libraries, user interface, or algorithm. Background A patent is a set of exclusionary rights granted by a state to a patent holder for a limited period of time, u ...
* Copyright on typefaces


References

{{DEFAULTSORT:Software Copyright Copyright law Software law