Software Copyright

Posted on 23 April 2015

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The creator of computer software may entitle dual intellectual property rights (IPRs) protection – copyright and patent. Of course, it must meet the subsistence requirements of each IPR.

However, I will only discuss the copyright of computer software at this juncture.

Copyright of computer software

In general, the computer software will gain copyright protection if:

  • it is original
  • it is recorded (or published), in writing or otherwise; and
  • it is domicile (the publication is within the jurisdiction)

The requirement of the ‘originality’ is always the contentious element in determining the copyright of computer software. Some countries have higher standard, some did not.

In Europe, in harmonizing this standard, the European Council has issued the Software Directive (Dir. 91/250/EEC), which defined the ‘originality’ as ‘the author’s own intellectual creation’.

In United Kingdom, this standard is also called as the ‘sweat of the brow’. The same standard is applicable in Malaysia too.

The challenge of adaptation

Adaptation is an arrangement or altered version of the program or a translation of it.

It occurs when a piece of software written for one operating system, is rewritten to operate on a different operating system. E.g., a program run in Windows is rewritten to operate in Linux or Macintosh. If this adaptation is not permitted by the original creator, it is a copyright infringement.

It also occurs when an original piece of software is rewritten, through reverse engineering. This is permissible as long as the new software did not copy from the original software, include the look and feel.

Thus, it is important for corporate counsel to understand the nature and characteristic of the computer software, which is bundle in the sale of equipment.

If the seller grants the IPR (instead of license) to the buyer, then the seller may not able to resell the same equipment to another customer, unless the seller is prepared a brand new computer software.

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