1

TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE

FACULTY OF LAW

MASTERS OF LAWS IN INFORMATION AND

COMMUNICATION TECHNOLOGY LAW (LL.M - ICT LAW)

RESEARCH ON

COPYRIGHT DOES NOT PROTECT IDEAS, ONLY THE EXPRESSION OF IDEAS HAS PROVED REMARKABLY ILL-ADAPTED TO RESOLVING ISSUES OF NON-LITERAL INFRINGEMENT OF COPYRIGHT IN COMPUTER PROGRAMS IN BOTH THE US AND UK COURTS. IT IS

HIGH TIME TO ABANDON THE ATTEMPT TO FORCE SOFTWARE INTO

THE COPYRIGHT MOULD AND TO CREATE A NEW RIGHT FOR

PROGRAMS WHICH REWARDS AND PROTECTS INTERNAL AND

EXTERNAL FUNCTIONAL ASPECTS OF PROGRAMMING.

BY

REHEMA E. Y. UROKI

SUPERVISOR: Mr. PHILLIP FILIKUNJOMBE

MARCH, 2013

2013

2

ABSTRACT

The world wide revolution and expansion of societal use of the internet and social media is

giving rise to new laws and potential liabilities in cyberspace due to the expansion, growth and

development of information and communication technology (ICT). Under the intellectual

property context, copyright protects expression of the ideas and not ideas itself. Not only authors

and inventors are protected with copyright and patent laws respectively, but both copyright and

patent law are applicable and used to the protection of software. One form of protection is

arguably more better than the other and there are strong debates on these two forms of

protection of software up todate. Software is widespread, affecting almost every aspect of human

life in all parts of the world since long time. This study will provide the explanation, each side

offers as to the respective superiority of intellectual property protection under patent laws and

copyright laws and clearly show the existence that new technologies are challenging bright line

separations between the two forms of protection under the intellectual property. There is a need

of having standpoint of which is the better way to protect software program, either by copyright,

patent law or both, or better to have protection of software by Sui generis which will cover

software programs, and to create a new rights for programs which will reward and protects

internal and external functional aspects of programming.

3

1.0 INTRODUCTION

The development of copyright protection for computer software has recently entered a "second

generation."1 In the context of rapid developments in computer technology and computer

software markets, the centre of the discussion has now shifted to a"second generation" issue: to

what extent non-literal aspects of computer software are protected under copyright.2 Many

current legal issues pertaining to copyright of computer software involve defining the scope of

protection of non-literal expression, such as "user interface" and "look and feel," in contrast to

literal expression, such as "source code," to which ownership may be more clearly attributed.3

This discussion paper will cater for the definitions of some important terms from intellectual

property, Copyright law, contention that the maxim copyright does not protects ideas, only their

expression, computer program and its protection under copyright, at both UK and US.

1 Edward Samuels, 'The Idea-Expression Dichotomy in Copyright Law," 56 TENN. L. REv. 321, 355-366 (1989) for a

categorization of the developments of computer software cases. See also Menell, "An Analysis of the Scope of

Copyright Protection for Application Programs," 41 STAN. L. REV. 1045, 1048 (1989). 2 There is an uncertainty in the definitions of "look and feel" and "user interface." "Look and feel" is generally

defined as "a set of functional capabilities of a programmed computer and the way it 'interacts' with a user."

Steven Lundberg, et al., The Copyright/Patent Interface: Why Utilitarian "Look and Feel" is Uncopyrightable Subject

Matter, 6 COMPUTER LAW. 5 (Jan. 1989). Likewise, "user interface" generally refers to "all of the devices by which

the human user can interact with the computer in order to accomplish the tasks of the computer program." Joseph

T. Verdesca, Copyrighting the User Interface: Too Much Protection?, 45 Sw. LJ. 1047, 1047 n.4 (1991). Some

commentators and courts have used the "user interface" and "look and feel" of computer software

interchangeably. See, e.g., Alan S. Middleton, A Thousand Clones: The Scope of Copyright Protection in the "Look

and Feel" of Computer Programs, 63 WASH. L. REV. 195, 195 & n.2 (1988); Lotus Development Corp. v. Paperback

Software International, 740 F. Supp. 37, 63 (D.Mass. 1990). But one commentator states that the majority of

scholars differentiate between "look and feel" and "user interface," understanding that "user interface" is one

element of "look and feel." Brian Johnson, An Analysis of the Copyrightability of the "Look and Feel" of a Computer

Program: Lotus v. Paperback Software, 52 OHIO ST. LJ. 947, 953-61 (1991). 3 Yutaka Nakamurat, Recent developments in Copyright Protection for Computer Software in the United States and

Japan, 1993; Pg. 1

4

Following with the argument that; is software copyrightable or patentable?. Finally, will be the

conclusion, and recommendation for the problem of protection of software.

1.1 Definition of terms

The phrase intellectual property (IP) refers to the bundle of legal rights that arise from the

creative genius of the human mind. Intellectual property refers to the property right conferred by

law to protect basically the creations of the intellect. The nature of intellectual property is to

encourage fair competition.4

Copyright; the right to copy, granted privilege protecting the printers' investment,5 it is the legal

protection given to certain types of original works and includes a wide range of creations,

including books, articles, posters, manuals, diagrams, figures and graphs, as well as CDs, DVDs,

software, databases and websites. It gives the copyright owner exclusive rights to control the

copying and dissemination of their works and can be a very valuable asset. Copyright gives the

copyright owner a number of exclusive rights, such as the right to copy, perform or communicate

their work to the public.6

4 By Thomas L. Peterson; How Intellectual Property Works, HowStuffWorks Inc. 1998-2013

5Tumaini University, Iringa University College Students. Used by permission. Posted to the Universitys, Local Area Network (LAN) by Laltaika E.I. July 23, 2006, Oxford University Press IJL&IT 2004.12(178) 6 McMaster Industry Liaison Office, Hamilton, Ontario L8S4L8, 905-525-9140: 2000-2013

5

Trade mark is defined under section 2 of the Trade and Service Mark Act7 as any visible sign

used or proposed to be used upon, in connection with or in relation to goods or services for the

purpose of distinguishing in the course of trade or business the goods or services of a person

from those of another. A trade mark as a sign which distinguishes particular goods or services

particular to one undertaking from the goods or services of other undertakings.8

Patent law is a specific area of law that encompasses the legal regulation, jurisprudence, and

enforcement of specific intellectual property rights known as patent rights. A patent is a

government issued right granted to individuals or groups that protects their original inventions

from being made, used, or sold by others without their permission for a set period of time.

2.0 COPYRIGHT LAW

Tracing its origins from eighteenth century England,'9 copyright protection is a form of limited

monopoly granted by the government to authors of original intellectual works.10 Copyright

protection has been extended to a broad range of "works of authorship," including some aspects

of computer programs, it is a fundamental tenet of copyright law, first expressed in Baker v.

Selden,"11 that only an author's original expression of an idea is protected; an idea itself may not

be copyrighted. Thus, if he were alive today, Shakespeare might copyright his particular

7 Cap 326 RE 2002

8 David Kitchin et al, Kerlys Law of Trade Marks and Trade Names (14th ed. 2005) 10.

9 Statute of Anne, 8 Anne ch. 19 (1710) (Eng.).

10 U.S. CoNsT. art. I, 8, cl. 8.

11 101 U.S. 99 (1879).

6

expression of the idea of a tragic hero's rise and fall (example, the text of Hamlet), but he could

not copyright the idea of a tragic hero's rise and fall itself. This notion is referred to as the

idea/expression dichotomy.12 Furthermore, copyright does not protect purely "utilitarian" works.

That is, one may not obtain a copyright in a work, such as a desk, whose only value is that it

serves some useful function-this is the essence of the utilitarian/non-utilitarian dichotomy.' The

idea/expression and utilitarian/non-utilitarian dichotomies are central elements of copyright

doctrine. Both are codified today at13, which provides that copyright does not protect "an idea,

procedure, process, system, method operation, principle, or discovery."14

An important variant on the idea/expression dichotomy is known as the "merger" doctrine, which

holds that where there are only a small number of ways to express a particular idea, copyright

protection does not apply. Morrissey v. Procter & Gamble Co.15, in such circumstances it does

not seem accurate to say that any particular form of expression comes from the subject matter.

However, it is necessary to say that the subject matter would be appropriated by permitting the

copyrighting of its expression. We cannot recognize copyright as a game of chess in which the

public can be checkmated. 12

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252- 53 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984). An important variant on the idea/expression dichotomy is known as the "merger" doctrine, which holds that where there are only a small number of ways to express a particular idea, copyright protection does not apply. Thus, for example, copyright protection does not extend to a description of the rules of a game because the expression of the rules "merges" into the idea of the game. See Morrissey v. Procter & Gamble Co., 379 F.2d 675 (Ist Cir. 1967). 13

17 U.S.C. 102(b) 14

For example, the United States Supreme Court held, in Mazer v. Stein, 347 U.S. 201 (1954), that the creator of a statuette that served as a lamp base was entitled to copyright protection only to the extent that the statuette had artistic or aesthetic value apart from its functionality as part of a lamp. 15

379 F.2d 675; 154 U.S.P.Q. (BNA) 193 June 28, 1967

7

3.0 COPYRIGHT DOES NOT PROTECTS IDEAS, ONLY THEIR EXPRESSION

Although the work itself may be protected, the idea behind it is not. For some copyright works

people say that it is the expression of an idea that has copyright protection rather than the

underlying idea. However, the borderline between expression and idea is very difficult to define -

ultimately only the courts can do this. A traditional concept is that copyright protects the

expression of an idea but not the idea itself. This concept has been highly developed by US

courts. The approach of the UK court to this in the context of computer programs has been

varied. In the 1992 case of John Richardson Computers, it was thought that it would be right to

adopt a similar approach in England. A few years later, in Ibcos, the concepts usefulness was

doubted, in that it would lead to complications so far as UK law is concerned and risk over

citation of US authorities, which are based on different statutes. The view was that UK copyright

cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea.

In Hollinrake v Truswell16, Herschell LC referred to the fallacy perpetrated by counsel that

copyright could subsist in an idea. In the case, the plaintiff failed in a claim for copyright in a

device for measuring the dimension of sleeves in the form of a cardboard measurement chart.

Rejecting the claim, the court identified the fallacy as the failure to distinguish between literary

copyright and the right to patent an invention. However, it is a fallacy which has survived to the

present. Over the last 100 years, the courts have repeatedly stated that copyright protection 16

(1894)

8

extends only to the expression of ideas, not to the ideas themselves. Seemingly unchallengeable

authority has accumulated on this point, but it has not deterred litigants from attempting to claim

copyright in abstract ideas.

The requirement that a work must be put into a tangible form is one of the determining factors.

This will be of great importance even if the author is apparently unconscious of what is actually

being created, and the control of arrangements whereby the work is produced is left to another.

Similarly, it was stated by Lord Denning MR in Ladbroke v William Hill17, that Ideas, thoughts,

fancies in a mans brain are not protected, but once reduced to material form are capable of

copyright protection.

In Donoghue v Allied Newspapers18, Farwell J stated, A person may have a brilliant idea for a

story, or for a picture, or for a play and one which appears to him to be original; but if he

communicates that idea to an author or an artist or a playwright, the production which is the

result of a communication of the idea to the author or the artist or the playwright is the copyright

of the person who has clothed the idea in form. In Donoghue, a ghost writer wrote up the

experiences of a successful jockey. It was held that copyright was owned by the newspaper

employing the journalist who had produced the articles purportedly by the jockey, and not the

jockey, who simply recounted his experiences, but did not commit them to writing. Farwell J

17

(1962) 18

(1938)

9

stated that If the idea, however original, is nothing more than an idea, and is not put into any

form of words or any form of expression such as a picture, then there is no such thing as

copyright at all. For instance, in Cummins v Bond19, the author was actually supposed to be a

ghost, the spirit of Cleophas from the New Testament who purportedly communicated through a

medium. The pen was held by the medium who was in a trance and who responded to prompting

and questioning from the defendant who believed himself to be in touch with dead Glastonbury

monks. The court (refraining from inquiring into the reality of the alleged spirit) held that

copyright attached to the medium who actually wrote the alleged utterances down. However, the

physical act of committing words or images into a material form is not always the determining

factor and the courts have, in the interests of practical necessity and commercial reality, accepted

certain refinements of these principles. A secretary who takes down a dictation of notes or a

mere copyist is not an author (Riddick v Thames Board Mills Ltd20; British Oxygen v Liquid

Air21,) an approach that can be justified on the basis that originality for the purpose of copyright

arises from the application of skill, labour and effort in creation, not simply the physical labour

of compiling a work.

19

(1927) 20(1977) 21

(1925)

10

It is well established that there will be no copyright in a banal idea. In Kenrick v Lawrence22, the

plaintiff sought to claim copyright in the concept of a hand filling in a ballot paper. The court

affirmed that there could be no copyright in a banal idea. If an expressed idea was commonplace

and simple, nothing short of exact literal reproduction would infringe the copyright in it.

Similarly, if there is no other way of expressing a certain subject, there will be no copyright

capable of protection. (A point subsequently applied in a computer software case, Total

Information Processing Systems Ltd v Daman Ltd23, although since doubted.) In Bagge v

Miller24, the plaintiff had suggested the idea for a sketch, but left it to the defendant to compose

it in a dramatic work. The court took the view that The mere suggestion of an idea which is

embodied by another in a dramatic work written by him does not constitute the originator of the

idea an author or a joint author of the dramatic work.

In Wiseman v George Weidenfeld & Nicolson25, the plaintiff had been a helpful critic and

adviser in assisting the second defendant to turn a novel into a play. He had not written any

dialogue and, whatever his degree of artistic involvement, could not be said to be a joint author.

The courts have distinguished between the situations where a person has ideas and is then

commissioned to produce work, but, in each case, a work has been made subject to contract or

22

(1890) 23

(1992) 24

(191723) 25(1985)

11

under equity. In Green v New Zealand Broadcasting Corporation26, broadcaster Hughie Green

brought an action for copyright infringement based on a television variety show he had

conceived and broadcast successfully in the UK called Opportunity Knocks. The New Zealand

Broadcasting Corporation produced their own version of the show incorporating the same

format, approach and catchphrases. Hughie Green claimed copyright protection in the literary,

musical and dramatic format of the show. However, because of the skeletal nature of the scripts,

simply providing a formula for the production of a talent show contest, no copyright could be

claimed. The scripts themselves only gave guidance and it could not be determined how the

material would ultimately be presented on screen. That would only be apparent to those who

watched the programme. The New Zealand Court of Appeal and the Privy Council took the view

that copyright could not protect a general idea. It was stretching the meaning of coincidence to

believe that the New Zealand Broadcasting Company could have independently originated a

similar show. However, the Court of Appeal quoted with approval the judgment in Tate v

Thomas27 that, since copyright created a monopoly, there had to be certainty in the subject

matter of that monopoly in order to avoid injustice to the rest of the world.

The seeming clarity of the law in this area has been muddled by remarks taken out of context and

by the continuing optimism of some claimants. Admittedly, in Mirage Studios v Counter Feat28,

26

(1989) 27

(1908) 28(1991)

12

the idea of aggressive humanoid sporting turtles being the subject of copyright was reluctantly

given some endorsement, but this has not been followed and was only an interim decision.

A distinction was made in Rees v Melville29 between ideas which could not be the subject of

copyright and situations and incidents in a dramatic work, which could be. The court might, in

certain circumstances, have to consider that the mode in which the ideas were worked out and

presented might constitute a material portion of the whole play, and the court must have regard

to the dramatic value and importance of what, if anything was taken. This would be so even

though no language was directly taken. Attempts have recurred in the commercial and industrial

world to protect, in particular, the design of products. However, the courts approach has

remained consistent unless evidence of the copying of a literary or artistic work already in

existence could be shown.

The case of Kleeneze Ltd v DRG (UK) Ltd30 involved an infringement action over the design of

a letterbox draught excluder. The court held that the defendants had taken the plaintiffs concept,

but none of the skill and labour that went into the design of the product was in issue. In the

absence of patent protection, the court held the defendant was entitled to copy. The defendants

had simply seen one of the plaintiffs products and produced a variant themselves. To some

extent, the vulnerability of mere ideas under copyright law has been mitigated by the doctrine of

29

(1914) 30

(1984)

13

confidential information; Frazer v Thames Television31, but the best advice to those blessed with

minds which generate new ideas is to ensure they are expressed in material form, preferably in as

complex a way as circumstances or argument can suggest.

4.0 COMPUTER PROGRAMS

A computer program is a series of instructions ("computer code") that tells a computer how to

perform a particular task. In many ways, a program is analogous to a cake recipe, which contains

the instructions for mixing and baking a cake. Unlike the typical cake recipe, however, a

program is written in one of various computer languages. Many types of computer languages

range from those actually used and understood by human programmers ("source code") to the

strings of ls and Os used internally by the machine ("object code").32 One aspect of each

computer program is its code, but programs also produce distinctive screen displays, like the

display of brightly colored imaginary characters on the screen of a Pac-Man video game or the

replica of an accountant's ledger generated by a spreadsheet program. These screen displays

themselves are protected by copyright ("copyrightable").33

31

(1983) 32

Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, Pg. 74 33

For example, when the user types "open" or selects "open" from a menu, the program may cause a window to appear on the screen containing previously stored information.

14

4.1 Are computer programs protected by copyright?, How is UK and US?

In most countries, computer programs are protected by copyright as literary works. Article 10 of

the Agreement on Trade-Related Aspects on Intellectual Property (TRIPS Agreement)

contends that: Computer programs, whether in source or objects code, shall be protected as

literary works under the Berne Convention34. Article 4 of the WIPO Copyright Treaty also holds

that: Computer programs are protected as literary works within the meaning of Article 2 of the

Berne Convention. Such protection applies to computer programs, whatever may be the mode or

form of their expression. According to the law governing copyright in the United Kingdom,

computer programs are listed as literary works in section 3.1 of the Copyright Designs and

Patents Act 1988, with no further definition. In the United States, the 1976 Copyright Act

defines a computer program as a set of statements or instructions to be used directly or

indirectly in a computer in order to bring about a certain result.35

Computer programs are protected by copyright. British law protects computer programs as

literary works. The scope of protection for computer programs has been subject to an ongoing

debate and has recently been addressed by British courts. A computer program consists of literal

and non-literal elements. The source code and the object code are the literal elements of a

program and are protected by copyright. A computer program does not only consist of literal

34

(1971) 35

The 1976 Copyright Act

15

elements but also of non-literal elements. They are what the user of the programs sees on the

screen, the user interface. This includes aspects such as the structure of the program, sequence

and organisation, the screen display, the look and feel and the input and output routines of the

program36

5.0 COPYRIGHTABILITY AND COMPUTER PROGRAMS

In light of the above descriptions of copyright doctrine and computer programs, the issue

addressed by the materials described in this guide is whether a particular aspect of a computer

program (its computer code, display screens or user interface) is entitled to copyright protection.

Note that this issue is, in some sense, rather narrow. To say that an element of a program-its

code, for instance-is copyrightable says nothing about what the author must prove to show that

another has infringed that copyright. Nor does the determination of copyrightability tell the

author the duration of the copyright, what remedies are available for infringement, or which

court has jurisdiction to hear an infringement claim. Nevertheless, copyrightability is a vital issue

which must be determined as a threshold matter in each software copyright case.37

In certain cases, the answer is relatively straightforward. For example, a computer program's

literal code (source code and object code) traditionally has been considered a "literary work" for

36

Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, pg. 74-75 37

Ibid, pg. 75

16

purposes of copyright law, and it is now fairly clear that computer code itself is copyrightable.38

Computer code in the form of a "mask" on a semiconductor chip is also protected under the

Semiconductor Act.39 More problematic, however, are questions about a computer programs

characteristic screen displays. Are these displays part of the computer program itself? Should

they be protected separately as audiovisual works? Are they even "works of authorship"? Still

more difficult are the so-called "non-literal" elements of computer programs, such as their look

and feel or the "structure, sequence, and organization" of their code.40 The difference between

literal and non-literal elements is best illustrated by an analogy to a book. A book contains

specific words in a specific order; so too, a computer program contains particular instructions in

a particular order.

These are "literal" elements, and, as to both books and programs, literal elements are

copyrightable. A book, however, also contains a plot or story-line. Unlike specific words in a

specific order, the definition of the "plot" is not wholly objective, and different observers might

describe a book's plot quite differently. So too, a computer program's instructions are written

with a certain structure, and the combination of a program's user interface elements (menus,

commands, and displays.) may create a characteristic look and feel that is susceptible of several

38

Example, Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 702 (2d Cir. 1992), Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1248 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984); Stem Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 n.3 (2d Cir. 1982). 39

17 U.S.C. 902. 40Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1224 (3d Cir. 1986) (affirming District Court's conclusion that there was copyright infringement based on the substantial similarities between the structures of two programs), cert. denied, 479 U.S. 1031 (1987).

17

descriptions. Thus, like a book's plot, a computer program's look and feel is an intangible, non-

literal element of a creative work. As a result, different courts have varied widely in determining

the scope of copyright protection for computer programs,"41 and the mission of this guide is to

provide a roadmap to the materials necessary to answer the confusing and often difficult

questions concerning whether particular elements of computer programs are copyrightable.42

6.0 IS SOFTWARE COPYRIGHTABLE OR PATENTABLE?

Patents and copyrights are two different types of intellectual property rights. It is possible to

protect some software under both copyright and patent law. Another significant difference

between patent and copyright for software is in the definition of an inventor versus an author.43

Both copyright law and patent law are applicable to the protection of software in U.S. One form

of protection is arguably better than the other and there are vehement debates on the topic. This

provide the broad arguments each side offers as to the respective superiority of intellectual

property protection under patent and copyright laws and demonstrate that new technologies are

challenging bright line separations between the two forms of protection.44

Copyright was once regarded as not being relevant to the sale of products other than those with a

creative element, such as books, art and gramophone records. Today, however, in addition to

41

Compare Whelan, 797 F.2d at 1224-25 (broad protection for the "structure, sequence and organization" of computer programs) with Computer Assocs., 982 F.2d 693 (stringent limitations on copyrightability of non-literal elements of computer programs). 42

Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, pg. 75 43

"Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html. 44

Ibid

18

these traditional areas, copyright is vital in preventing piracy of computer software and

preventing copying of other related works. Software developers first turned to statutory

protection under the Copyright Act since the writing code was similar to other forms of writing;

computer languages were regarded as a different form of language. " When a computer program

is written out on a piece of paper, it is relatively clear that copyright will exist in that work upon

its creation, so long as the traditional copyright requirements are met.45 The copyright

protection therein will function the same way as it would for any other literary work. And it has

been clear since the early 1980s that computer programs in general are copyrightable.46

However, with the advent and proliferation of microcomputers and software in the 1970s,

copyright protection was used and has been used as the principal mode of protection for software

until very recently. Computer software, by its very nature as a written work intended to serve

utilitarian purposes, defies neat classification within the current intellectual property system. The

difficulty in classifying objects as artistic or utilitarian is not new to software; however, objects

such as lamps, mannequins and bicycle stands have been contested as either artistic or

utilitarian.47 Kelly v. Arriba Soft Corp.,48 it held that infringement exists through any

unauthorized display of copyrighted works on an Internet site, even if this is effected by

importing the works direct from the copyright owners site without any intermediary copying.

45

The U.S. Copyright Act (17 USC 100 et. seq.) 46

The U.S. Copyright Act 47

Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html 48

61 U.S.P.Q.2d 1564 (9th Cir. 2002)

19

Several other fact-specific cases have been decided regarding whether and to what extent various

portions of a software package may be copyrightable. In AT&T Corp. v. Excel Communications

Inc.,49 and Lotus Development Corp. v. Borland International Inc.,50 the court held the case by

looking and deciding that; to what extent various portions of a software package may be

copyrightable.

In broad strokes, copyright protection gives a copyright owner a bundle of specific rights that

are somewhat dependent on the type of work involved. Case law has often classified computer

software as falling within the statutory definition of copyrightable subject matter in the category

of literary works, as opposed to any other work of creative origin, although some manifestations

of software may be best protected as audio-visual works.51 Over time, case law refined the

contours of patentability. Patent protection has been denied, for example, for inventions in the

form of certain algorithms and inventions relating to methods of doing business.52

7.0 CONCLUSION AND RECOMMENDATIONS

7.1 Conclusion

From the discussion above, it is clearly that computer programs as such cannot be patented, but

may be protected under the copyright law in a wide range. All forms of computer programs and 49

50 U.S.P.Q.2d 1447 (CAFC 1999) 50

34 U.S.P.Q.2d 1014 (1st Cir. 1995), affd 116 S. Ct 804 (1996). 51

The U.S. Copyright Act 52

Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html

20

the related documents, whether recorded as source code, object code, or in any other form;

including user programs and operating systems may be protected. It is obvious that, the purpose

of copyright is to protect particular expressions of an idea not the idea itself. Broader protection

for software, as provided by patent law, must meet the standards of novelty and no obviousness

in order for that type of intellectual property protection to apply. For the purpose of this study

paper, both copyright and patent law, have a place in protecting software, depending on the

particular format of an application, looking on its usage, presentation, and an array of other

factors that have traditionally differentiated intellectual property between the two forms of

protection. In the event that tightens the examination process in granting patents to applications

relating to software and business methods, it may become more difficult to obtain patents in this

field and the focus may then move back to copyright protection.

It is now the time to accept that copyright protects computer programs and other digital

information, whether they are in human-readable source code or are an executable program that

is intended to be understood only by a computer. Copyright provides protection for computer

programs that is both easy to obtain, it occurs automatically as the computer program is written

and effective against someone who is making or distributing copies of the software program.

It is the observation that, copyright of software is the best and more profitable than patent.

WHY? In many countries, computer programs, whether in source or object code, are protected

21

under copyright. The major advantage of copyright protection lies in its simplicity. Copyright

protection does not depend on any formalities such as registration or the deposit of copies.

International copyright protection is automatic, it begins as soon as a work is created. Also, a

copyright owner enjoys a relatively long period of protection, which lasts in general, for the life

of the author plus 20 or 50 or, in certain countries, 70 years after the authors death. Patent must

be applied for, in principle, and in each country in which to seek patent protection. In order to

enjoy patent protection an application for a patent shall comply with both formal and substantive

requirements and a patented invention shall be disclosed to the public. These requirements can

be legally and technically complex, and their compliance often requires a legal experts

assistance. Compared with copyright protection, the term of protection is much shorter, namely,

in general, from the filing date of the application to the intended protection.

Hindrance economically: Software patents can be an economic hindrance: HOW? Strong

software patent protection is a barrier to market entry and mostly discourages productivity.

Software patents can create an "anti commons". The Anti commons is like Hobbe's state of

nature; poor, nasty, and brutish. The Anti commons is also like Babylon where, each proprietor

has one piece of useful information but the transaction costs created by the patent regime prevent

socially useful combination of these different pieces.

22

Copyright and patent protections of computer software are enhancing each other systematically,

although copyright seems to be more better than patent on the protection of software program.

For inventions that can be hidden in software internals, copyright protection may provide

sufficient legal protection for underlying inventions as well.

7.2 Recommendations

There is the need to amend Tanzania laws, and also to encourage having a single piece of

legislation in Tanzania to cater for and, harmonise certain aspects of copyright and related rights

in the information society. And the legislation or the amendment to encourage must aims to

establish a level playing field for copyright protection in the information society and would cover

software programs, and it must also create a new rights for programs which will reward and

protects internal and external functional aspects of programming. It must also not affect the legal

protection of computer programs or databases but create a new right for software programs only.

The attempts to provide legal protection for computer software must have been amending

existing legislation, or to enact new legislation to cater for software protection, because computer

technology is advancing at a rapid rate everyday.

23

It is the opinion that, the need of protection of computer software should focus on the unique

requirements of special legislation for the protection of computer software. The good balance of

this will be the attempts to draft legislation (sui generis legislation) on the national and

international levels to cater for the protection of software. This will create a new rights for

programs which will reward and protects internal and external functional aspects of

programming easly.

The good proposal of software protection National and International is a sui generis law, in

which will contain both copyright and patent laws, or a hybrid between the laws of copyright and

patent for the protection of software. Successful of this, both the expression and the innovative

ideas involved in the creation of the computer programs would be granted protection, which also

the legislation will create a new rights for programs which will reward and protects internal and

external functional aspects of programming.

The legislation should be smart, fitted and well-cut to cover the full entre range of computer

programs, whether they display a literary work, control the operation of a machine, or originate

their own ideas.

The term of the protection for software program in the new legislation should be provided for

long enough to allow a proprietor to fully exploit the economic and moral rights granted in his

product. The remedies also, must be provided clearly to fit, and to protect the wide range of

24

software interests as required. Also there is a need to classify the different types of 'software

infringement', and software remedies to the new legislation.

A sui generis form of protection is the most efficient way to the protection for computer

programs which geared to rapid changes. At the international scope of the software, sui generis

protection must be developed as a concerted effort by the world legal community.

Generally, the best thing for promoting and widely known of this vital new area of the law is a

multinational treaty which will be created specifically for the protection of computer software,

which generally, it would be pre-mature to establish a sui generis treaty for the protection of

software, and after the adoption of the treaty it will be the option that, multilateral treaty should

be the final step in the process of providing worldwide protection for computer programs.

25

8.0 BIBLIOGRAPHY

International Agreements and Conventions, Statutes, and Model Laws

Agreement on Trade-Related Aspects of Intellectual Property Rights ( TRIPS Agreement) 1994.

EEC Directive harmonising the term of protection of copyright and certain related rights, 1993.

The Berne Convention for the Protection of Literary and Artistic Works ( Paris, 1971)

The UK Copyright, Designs and Patents Act, 1988.

The UK Unfair Contract Terms Act, 1977.

The US Copyright Act, 1976 (as amended)

The US Digital Millennium Copyright Act, 1998.

The Tunis Model Law on Copyright for Developing Countries, 1976.

Universities UK and Copyright Licensing Agency Limited, 13 December 2001.

WIPO Copyright Treaty, 1996

Statute of Anne, 8 Anne ch. 19 (1710) (Eng.).

The Trade Mark and Service Mark Cap 326 RE 2002

Books

Andrew G., & Gran B., Gowers Review of Intellectual Property. London: The Stationery Office.

2006

26

Altbach, P.G. ed., Copyright and Development: Inequality in the Information Age, Chestnut Hill,

Mass.: Bellagio Publishing Network Research and Information Center, 1995

Anderfelt, U. International Patent Legislation and Developing Countries; The Hague: Martinis

Nijhoff, 1971

Bainbridge. D, Introduction to Computer Law, Longman, Fifth Edition, 2002

Drahos, P.F. A Philosophy of Intellectual Property, Aldershot: Dartmouth, 1996.

Gregory A. S., Software Patent. (3rd Edition). New York: Aspen Publishers Inc., 2012

Ian J. Lloyd, Information Technology Law, Oxford University Press, 5 Edition, 2008.

Ian J. Lloyd, Information Technology Law, Oxford University Press, 6 Edition, 2011.

Kavaljit Singh, Patents vs Patients: AIDS, TNCs, and Drug Price Wars, 2001

Khor, M. Intellectual Property, Biodiversity and Sustainable Development. Zed and Third

World Network, Penang, 2002

Mambi, J. A., ICT Law Book: A Source Book for Information & Communication Technologies

and Cyber Law, Tanzania: Mkuki na Nyota Publishers LTD, 2010.

Mark A. Lemley, Peter S. Menell, Robert P. Merges, and Pamela Samuelson, Software and

Internet Law (3d ed. 2006).

Mnyeti M. J, Information and Communication Technology, Elimu Publishers (T) Limited, 2011

Merges, R.. et al, Intellectual Property in the New Technological Age,Aspen Law and Business,

New York: 1997

27

Phillips J. and Firth A., Introduction to Intellectual Property Law, London:Butterworths , 1995-

3rd edition

Ricketson, S. The Berne Convention for the Protection of Literary and Artistic Works: 1886-

1986, London: Centre for Commercial Law Studies, 1987.

Thomas L. Peterson; How Intellectual Property Works, HowStuffWorks Inc. 1998-2013

Vaver, D. Intellectual Property Law: Copyright, Patents, Trade-marks, Concord, Ontario,

Canada: Irwin Law, 1997

Watal, J. Intellectual Property Rights in the WTO and Developing Countries. Oxford

University Press, Delhi. 2001

Yutaka Nakamurat, Recent developments in Copyright Protection for Computer Software in the

United States and Japan, 1993

Articles, Reports, and Other Materials

Association of Learned and Professional Society Publishers, What Authors Want, June 1999

Barlow, J. Selling Wine Without Bottles: The Economy of Mind on the Global Net, Wired

Magazine, 1994.

Cabinet Office (UK), Open Source Software- Use within UK Government, Draft for Public

Consultation, 10/12/01

28

Chakava, H. International Copyright and Africa: The Unequal Exchange in P. Altbach ed.,

Copyright And Development: Inequality In The Information Age, (Chestnut Hill, Mass.:

Bellagio Publishing Network Research and Information Center, 1995).

David Kitchin et al, Kerlys Law of Trade Marks and Trade Names (14th ed. 2005) 10.

Denicola, R. Mostly dead? Copyright law in the new millennium, Journal of the Copyright

Society of the USA . Vol. 47, 2000.

Edward Samuels, 'The Idea-Expression Dichotomy in Copyright Law," 56 TENN. L. REv. 321,

355-366 (1989) for a categorization of the developments of computer software cases.

Festa, P. Governments push open-source software, CNET News, 29 August 2001

(http://news.cnet.com/news/0-1003-200-6996393.html?tag=tp_pr )

Fukuda-Parr, S. Making new technologies work for human development, United

Nations Development Programme, Human Development Report 2001, London, 10 July 2001

(http://www.undp.org/hdr2001/sakiko.html )

Gana, R. L. Has Creativity Died in the Third World? Some Implications of the

Internationalization of Intellectual Property, Denver Journal of International Law and Policy,

XXIV (1995) 109. P. Geller, Legal Transplants in International Copyright: Some Problems of

Method, 13 UCLA Pac. Basin L.J. 199 ( 1994).

Halbert, D. Asian Futures: Piracy, Open Source and the International Intellectual Property

Law, September 2001. (Unpublished; on file with author.)

29

The International Intellectual Property Alliance, Lebanon, Report 301/99, 1999

(http://www.iipa.com/rbc/1999/rbc_lebanon_301_99.html

The International Intellectual Property Alliance, Copyright Industries in the US Economy-The

2000 Report , (http://www.iipa.com/copyright_us_economy.html )

Karjala D. et al (more than 40 US intellectual property professors), Comment of US Copyright

Law Professors on the Copyright Office Term of Protection Study, 12 European Intellectual

Property Review 531 ( 1994)

McMaster Industry Liaison Office, Hamilton, Ontario L8S4L8, 905-525-9140: 2000-2013

Menell, P.S. The Challenges of Reforming Intellectual Property Protection for Computer

Software. 94 Columbia Law Review 2644 (1994)

Menell, "An Analysis of the Scope of Copyright Protection for Application Programs," 41

STAN. L. REV. 1045, 1048 (1989).

Nicholson, D. Does copyright have any significance in the lives of illiterate or visually-impaired

persons? http://www.wipout.net/essays/1128nicholson.htm

Oddi, S. The International Patent System and Third World Development; Reality or Myth, 1987

Duke L.J. 831.

Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html

Peeling N. and Dr. Satchell J., Analysis of the Impact of Open Source Software, October 2001 (

http://www.govtalk.gov.uk/rfc/rfc_document.asp?docnum=429 )

30

Puri, K. Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into

Action, Intellectual Property Journal, 293 (1995) 310.

Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html

Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3

Thomas L. Peterson; How Intellectual Property Works, HowStuffWorks Inc. 1998-2013

Tumaini University, Iringa University College Students. Used by permission. Posted to the

Universitys, Local Area Network (LAN) by Laltaika E.I. July 23, 2006, Oxford University

Press IJL&IT 2004.12(178)

White, E. Making the Software Industry Open , Cooperation South #1, 2001