The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

Limited

-v-

University Tutorial Press

Limited*

Judge Peterson said: "The word

'original' does not in this connection

mean that the work must be the

expression of original or inventive

thought. Copyright Acts are not

concerned with the originality of ideas,

but with the expression of thought, and,

in the case of 'literary works' with the

expression of thought in print or writing.

The originality which is required relates

to the expression of thought. But the Act

does not require that the expression

must be an original or novel form, but

that the work must not be copied from

another work i.e. it should originate

from the author". And in

Independent

Television Publications Ltd V Time Out

Ltd)

TV programme listings were held

to be an original literary work because

of the time and effort spent in devising

them. It is important to note that sub-

stantial modifications and improvements

to a computer program already in

existence may result in the creation of a

fresh work that will itself be protectable

as an original copyright work.

Authorship and Ownership of

Computer Programs

Articles 2 and Regulation 3 and 4.

The

owner or author of the copyright, is the

person or business who creates the

computer program and where a work is

produced by a group of persons, which

is typical in software production, the

rights in the computer programs will be

owned jointly. An employee who

creates a computer program does so for

the benefit of the employer unless other-

wise provided by contract. Regulation 4

expressly provides that works created in

the employment of newspapers,

magazines or other periodicals will

belong to the employee contrary to slO

(2) Copyright Act 1963. The Directive

is surprisingly silent on the ownership

of commissioned software works which

is the most common business

arrangement for custom made packages,

and it is assumed that the works will

belong to the software house developing

the work, unless, as with employees, a

contract provides that copyright belongs

to the software company who

commissions the work.

Who is Entitled to Benefits of

Software Protection?

Article 3.

Protection is granted to all

| natural or legal persons eligible under

national copyright legislation as applied

to literary works. The Primary Act

affords the spoils of copyright in s7 (5)

to qualified persons, who in the case of

individuals, must be Irish citizens either

domiciled or resident within the State,

and in the case of a corporate body

incorporated in Ireland.

What Rights does the Owner of the

Copyright Actually Have?

Article 4.

Traditionally copyright gives

the copyright owners of the work a set

of negative rights to prevent others

copying their works or in dealing with

the works. These restricted acts in

Article 4 and Regulation 5 are:

a) not to reproduce the computer

program by any means and in any

form either temporarily or

permanently;

(this will include the use of

pirated disks by users who when

starting to run a program will

have to copy the program,

perhaps just momentarily, to their

own computer)

b) not to translate, adapt, arrange or

otherwise alter the computer

program and the copying of such

results;

[

c) not to distribute the computer

program to the public including

rental of the software.

(Once a computer program is lawfully

put on the market in any Member State,

by either the owner of the copyright or

with his consent, the copyright owner

will be considered to have exhausted

his distribution rights to the public and

therefore will not be able to prevent

any other person selling or distributing

the work in other Member States.

However, he will still be able to

prevent others renting the computer

program or copies of it to the

public.)

There are some important exceptions to

the protected acts above which are found

Article 5 and Regulation 6 and

i A5(l)

A person can copy, translate,

adapt, arrange or alter the computer

program if necessary to use it but this

right is confined to lawful acquirers of

the copyright such as purchasers or

licencees. This right includes error

correction, but will not apply where

contractual provisions exclude it. The

preamble to the Directive states that

such acts are permitted only where

technically necessary, which would

certainly exclude casual copying or

copying for commercial gain.

A5 (2)

It is permitted to make a back-

up copy of the work which is generally

done by users in the event of a disk

failing, and this right may not be

excluded by contract. This back-up

right is already found in most - if not

all - software packages.

A5 (3)

It is permitted to observe,

study and test the functioning of

protected computer programs in order

to determine their underlying ideas

and principles - which as we have

already discussed are not protectable -

but this right is also only afforded to

those who have the right to use a copy

of the program and will exclude

competitors.

This right to observe and study other

works is already catered for in s 12 of

the Principal Act which allows fair

dealing with a protected copyright

work.

Decompiling of Computer Programs

Article 6 and Regulation

7. These are

the most contentious provisions

affecting a software producer's

provisions, following some intense

lobbying throughout the passage of the

Directive. Many software houses

concentrate on creating computer

programs that can be operated in

conjunction with the products of the

major suppliers of computer software

and hardware and they obviously need

to study these major products to ensure

interoperability with their own

packages.

Generally in copyright, it is permitted

to copy and translate the code of a

protected computer program as long as

separate teams are used by usually

rival software houses - one to

decompile the program in question and