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Subject Matter I 

Software CopyrightOren Bracha, Summer 2015

Background Concepts

• Idea/expression– Abstractions Test (Nichols v. Universal Pictures (2nd Cir.

1930))– Scenes a Faire (e.g. Alexander v. Haley (SDNY 1978))

• Methods and Procedures– Baker v. Selden (1879)– Merger doctrine

17 U.S.C. §102(b)

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Nichols v. Universal Pictures (2nd Cir. 1930)

Nichols “Pattern” TestId

eaE

xpre

ssio

n

Alexander v. Haley (SDNY 1978)

Both Roots and Jubilee are amalgams of fact and fiction derived from the somber history of black slavery in the United States. Each purports to be at least loosely based on the lives of the author's own forbears.

Alexander v. Haley (SDNY 1978)

“Attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves, the atrocity of the buying and selling of human beings, and other miseries are all found in stories at least as old as Mrs. Stowe's. This is not, and could not be, an offense to any author.”

Baker v. Selden (1879)

Directive 2009/24/ECArt 1(2)

Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.

Recital 11

For the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive. In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive. In accordance with the legislation and case-law of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright.

Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983)

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Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983)

• Object code is a literary work protectable by copyright.

• An operating system is protectable– An operating system is a set of instructions which

are expression rather than a process under 102(b) or a machine. Only the instructions are protected.

– Merger only when the code “represents the only means of the expression of the idea underlying” it.

– Total compatibility is a “commercial and competitive objective” not an idea.

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Computer Associates International, Inc. v. Altai, Inc. (2nd Cir. 1992)

• Protection to computer programs extends to non-literal elements• Under Baker v. Selden (1879) elements of a program that must

necessarily be used as incident to the program’s idea, system or process are not protectable.

• Computer program infringement test– Abstraction– Filtration

• Elements dictated by efficiency• Elements dictated by external factors (e.g. requirements of the computer;

compatibility requirements; design standards; customer demands; widely accepted programming practices)

• Public domain elements– Comparison

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Structure of a Computer Program

function

subroutine 1 subroutine 2 subroutine 3

ssr#1

ssr#1

ssr#1ssr#2

ssr#2

ssr#2 ssr#3

Structure of a Computer Program

function

subroutine 1 subroutine 2 subroutine 3

ssr#1

ssr#1

ssr#1ssr#2

ssr#2

ssr#2 ssr#3

Whelan Assoc. v. Jaslow (3d Cir. 1986 )

idea

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Computer Associates International, Inc. v. Altai, Inc. (2nd Cir. 1992)

Idea

Expr

essi

on

Abstraction

func

tion

code

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Computer Associates International, Inc. v. Altai, Inc. (2nd Cir. 1992)

Idea

Exp

ress

ion

Filtration

E.U. Subject Matter• Computer program in any form

• Object/source code [BSA (ECJ 2010)]• Any embodiment including in hardware

• Preparatory materials• Only if “computer program can result from it.”

• Does not include: manuals; output; etc.• But such expressive materials may be protected under the Information

Society Directive (2001/29) [BSA (ECJ 2010) Nintendo (ECJ 2014)]. • Exclusion of: “Ideas and Principles”• Non-literary copying

• No Altai equivalent test on the E.U. level• Merger?

• Some recognition (BSA (ECJ 2010)

Directive 2009/24/ECArt 1(1)

In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the

purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material.

Recital 7

For the purpose of this Directive, the term ‘computer program’ shall include programs in any form, including those which are incorporated into hardware. This term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.