April 15, 2013 by Ozgur Ozden
Copyright in Software
Wikipedia describes this as “Software copyright is the extension of copyright law to machine-readable software.” At the beginning protection of a computer program was really difficult because programs were not accepted as tangible property. There were few programs and few computers so copyright was not a real problem. Most of the programs were custom made. Around 1960 software companies started to market these programs to increased number of computer users and companies. So at this stage copyright and copying become a problem for the companies as well as receiving parties. Copyright act prepared at 1909 requires to copyright these programs at the publication, just like books and this caused problems. This problem is fixed with 1976 copyright act. First computer program given to US copy office for registration was at November 30, 1961 by North American Association in an environment of magnetic tape. Office approved this application at 1964. Since then copyright for computer programs are accepted for copyright all over the world. Copyright Act of 1976 is mainly regulated the copyright problem.
Commission on New Technological Uses of Copyrighted Works (CONTU) was established at 1974 to work deeper in this manner. They have regulated and explored “computer program” and “computer database” on a larger scale and US congress added the term “Computer Program” to section 101 in year 1980.
US Congress passed Digital Millennium Copyright Act (DMCA) in year 1998 to penalize the unauthorised use, copying and distributing of the copyrighted programs.
If we take a look at the software protection in the World, Canada protects software as literacy under the Copyright Act of Canada, in India software can be copyrighted. European Union (EU) sent a directive to its members at 1991 for copyright protection and should be considered under literacy. Germany and France made the necessary arrangements before the EU directive at 1985. Turkish copyright protection is taken from EU 1992 Directive signed in switzerland.
Patent in Software
Wikipedia described Patent as “set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. “ Patenting a computer program may also considered for protection. As we have discussed above copyright protects programs as tangible object but patenting protects the concept and different variations of this concept as well.
Patent usually lasts for 20 years and protects the rights of the creator from selling, copying of the invention. In the meantime invention must be unique and applicable to society in order to apply for a patent. Patent for an invention given in three different categories as plant, utility and design.
Patenting a software in US has a long story because algorithms, formulas and equations are non patentable. So computer program used to fall into this category. in 1981 DIEHR JAMES and LUTTON THEODORE applied for a machinery, “Direct digital control of rubber molding presses.” Machinery was operated by a piece of software and system patented as a whole. Later on in 1989 US patent office declared the necessary steps to apply for a software patent and in 1994 software can be patented in the category as machine, because it can be programmed in a special way to to operate machines. And this getting very common these days and many computer programs are patented by US patent office.
Trademark in Software
By copyrighting and patenting a software owner may take precautions about the concept, variations in concept, reproduction or copying. But the logo of the company, interface, design or name of the company or software should be protected as well. In this case trademarking a software is needed.
US Trademark Act of 1946, also called as Lanham Act is suitable for trademarking a software in US. Patent office defines trademark as “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”
Usually symbols for describing a trademarks are ™ (the trademark symbol) and ® (the registered trademark symbol).
1- US patent Office, Trademark, copyright or patent? (Year Unknown) Online, Available at: http://www.uspto.gov/trademarks/basics/trade_defin.jsp [Accessed: 1 April 2013]
2- Alan Story, Intellectual Property and Computer Software , (2004) Online, Available at: http://www.iprsonline.org/unctadictsd/docs/CS_Story.pdf [Accessed: 1 April 2013]
3- 5- RIAA: U.S. copyright law ‘isn’t working’2010 (online) Available at: http://news.cnet.com/8301-13578_3-20014468-38.html [Accessed: 2 April 2013]