The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

Copyr i ght Prot ec t i on of Compu t er

So f twa re in I reland

by Michael Vallely BCL BL LLM

(Lond)*

This article takes the reader step-

by-step through the EU Directive on

the legal protection of computer

programs and the Statutory

Instrument incorporating it into

domestic law and notes its expected

effect on the 1963 Irish Copyright

Act.

EU Directive for Legal Protection of

Computer Programs

to creators of works such as novels,

paintings, musical compositions, plays

etc., to control the copying or other

exploitation of their works. In Ireland

there is a remarkable dearth of

litigation or literature on the legal

protection of rights in software despite

the importance of the software

industry. Yet, it is estimated that the

current value of the software industry

to Ireland is £2 billion per annum.

The

touchstone for Irish software protection

is found in the rather outdated 1963

not anticipate the advent of the

computer program and the problems of

protecting it as a copyright work. This

- the Principal Act - in s8, affords

literary, dramatic or musical work.

Other jurisdictions, including the

United Kingdom, in the Copyright

Design and Patent Act 1988, have

rather artificially protected software

as a literary work considering it a

written table or compilation; and s2 of

our Principal Act, like the United

Kingdom statute, defines a literary

work as including any written table

or compilation.

However, the Irish courts will not be

required to decide whether copyright

in software can be protected as a

literary work as the EU has intervened,

and produced a Directive dealing

specifically with computer programs.

Michael Vallely

Council Directive 91/250/EEC. This

Directive on 1 January 1993 - the

opening day of the single market -

required all Member States, including

Ireland, to bring in an equivalent

protection for the copyright protection

of computer programs as literary

works. The statutory instrument S.I.

No. 26 of 1993 entitled: European

Communities (Legal Protection of

Computer Programs) Regulations

1993, incorporating the Directive into

Irish law, is now the prime source of

law for software companies who wish

to protect their creations against

software pirates or competitors to

their packages.

What is protected?

Article 1 of the Directive and

Regulation 3 of Statutory Instrument.

There is no definition of computer

program but it is stated that expression

in any form of a computer program

will be protected. A useful description

of a computer program is found in the

Australian Federal Court case of

Apple

Computer Inc. & Another -v-

Computer Edge Property Ltd

' which

said 'A program is a concise set of

instructions that directs the computer

to do the tasks required of it step by

step and to produce the desired result'.

However, the ideas and principles

underlying any element of a computer

program are not protected. The

reference to expression in effect

incorporates the copyright legal

idea/expression dichotomy, found in

the USA

and the United Kingdom,

into European Union law and therefore

into our domestic legislation. This

dichotomy, in basic terms, gives no

protection to ideas behind a work but

it does afford protection to the

expression of the idea. It will be up to

the courts to draw the line in each

individual case where an idea ends and

the expression begins and each judicial

interpretation of this demarcation will

underscore when copying has occurred

or not. Interfaces which allow a

program to interoperate with other

software or hardware are specifically

excluded from protection. This

removal of protection appears to be

aimed at lower level interfaces of

programs with hardware and other

programs than higher level interfaces

such as the interfaces that guide users

through programs which may still

receive protection.

It will be up to the courts to

draw the line in each

individual case where an idea

ends and the expression begins

A computer program shall be

protected if it is the author's 'own

intellectual creation'. Generally, in

must be original, and sometimes a

further aesthetic test must be passed in

order to qualify as an original work.

The preamble to the Directive expressly

excludes any qualitative or aesthetic

tests in deciding on originality. This

'own intellectual creation' requirement

which stems from French copyright

law, appears therefore to demand quite

a low standard of originality, similar to

that employed in the United Kingdom,

which affords protection for works that

are simply not copied from others or

are as a result of a person's own skill,

labour, and effort. In the English

case of

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