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Copyright Protection of a Software as a Work with Functional Elements
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Transcript of Copyright Protection of a Software as a Work with Functional Elements
TRUST.Partner, M.Jur (ECL) JAN LINDBERG
ITechLaw 6 November 2015
IP Workshop
TRUST.
Copyright Protection of a Software as a Work with Functional Elements
TRUST.
JAN LINDBERGLLM 2001 (University of Helsinki)MJur 2003 (University of Oxford)
Mergers and Acquisition, OutsourcingPrivate Equity and Venture CapitalIP and Technology, IT Disputes
[email protected]+358 (0)40 823 6031
www.thetrust.fi
TRUST.
Who Are We?Attorneys-at-Law TRUST. is a Finnish transaction boutique focusing on the mostdemanding M&A, outsourcing, private equity and venture capital, complextechnology and IP assignment. We ranked in all legal surveys among the oldestand largest firms in Finland. We operate in the energy sector, telecom, informationtechnology, biotech, fintech, financial regulation and banking assignments.
E-mails: [email protected] 20 B, 6th floor, Helsinki, Finland
TRUST.
What is the Agenda and Scope of this Workshop?• In this workshop we are focusing on the element of functionality and its effects on availability of copyright protection
• How far can copyright protect functional elements?
• Is copyright protection available in case of trial and simple computer programs(i.e., in embedded systems)?
• Open discussion
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Copyright
• “A person who has created a literary or artistic work…”
• Originality, teoskynnys (Finnish), or similar “the product of independent and original creative work” by the author.
• “…within the limitations imposed hereinafter, copyright shall provide the exclusive right to control a work by reproducing it and by making it available to the public, in the original form or in an altered form, in translation or in adaptation, in another literary or artistic form, or by any other technique.”
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SAS Institute Inc. v World Programming Ltd (UK)• Lengthy proceeding, with cases in the USA and the UK (with referral to the ECJ) • SAS was the owner of the SAS System that enabled its users to perform data processing and analysis tasks
• WPL had licensed the Learning Edition of the SAS System, enabling it to study and use the SAS System
• On the basis of its tests and study, WPL had developed a competing system that was interoperable with the SAS system • Replication of the functionality of certain parts of the SAS System • No access to the source code and written in a different programming language
• Enabled SAS users to change systems, which was previously practically impossible
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SAS Institute Inc. v World Programming Ltd (UK)• SAS accused WPL of:
• copyright infringement (software program and manual) • breach of its license agreement (non-permitted use)
• The case was ruled largely in the favor of WPL
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Oracle Am., Inc. v Google Inc. (US)
• In November 2007 Google released the beta version of its Android mobile platform
• In August 2010, Oracle first sued Google for copyright and patent infringement • In May 2012 and District Court decided on copyright protection of APIs• In May 9 2014 judgment form the Federal Appeals Court• In June 29 2015 Supreme Court declines to hear Oracle v. Google case over software copyright
• Issue of “fair use” still open
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Oracle Am., Inc. v Google Inc. (US)
• At [22] “…Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages.”
• At [52] “…We are mindful that the application of copyright law in the computer context is often a difficult task. [...] On this record, however, we find that the district court failed to distinguish between the threshold question of what is copyrightable--which presents a low bar--and the scope of conduct that constitutes infringing activity. The court also erred by importing fair use principles, including interoperability concerns, into its copyrightability analysis.”
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Case “Karelian Pie” (FI)
When is a computer program of an embedded system protected by copyright?
• Requirement: “the product of independent and original creative work” by the author
• According to an opinion of the Finnish Copyright Committee (1987:8): “a trivial program consisting mainly of functions obvious to a professional user does not meet the threshold of originality and is thus not protected by copyright.”
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Case “Karelian Pie” (FI)
Case “Karelian Pie” – a simple machine used to make Karelian pies
District Court:
“The only evidence of that the program meets the threshold of originality is theopinion of the Copyright Council. Given that the opinion is…defective (based onincorrect facts), and all other clarification, especially the statements by experts Gand J, seem to lead to the conclusion that the program is too trivial to meet thethreshold of originality, and thus the district court concludes that the program beingprotected by copyright remains unsubstantiated.”
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Case “Karelian Pie” (FI)
Court of Appeal:
“According to Article 1 of Directive 91/250/EEC on the legal protection of computerprograms, a computer program shall be protected if it is original in the sense that itis the author's own intellectual creation. Other criteria shall not be applied whenassessing, whether the program is protected.”
“In the light of the directive, it seems obvious that computer programs quite easilymeet the threshold of originality”
“Taking into consideration the principles outlined in the directive, the Court ofAppeal concludes -- that the computer program subject to the claim shall bedeemed a literary work referred to in Section 1 of the Copyright Act.”
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Open discussion
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“Copyright protection of computer programs is narrower in the EU as in the
US”
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“Software industry should not be treated differently if compared to other industries and therefore contractual restrictions to studying, observation and testing of any licensed technology should be valid”
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“Interfaces should not be subject to copyright protection”
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“Programming languages should have copyright protection”
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“There is no computer program simple enough to be denied copyright protection”
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“Copyright is not the correct form of protection for computer programs and
functional elements”
TRUST. THANK YOU !