The problems concerning protection of a computer program are that potential users will want to copy the software without payment, competitors will wish to examine the software closely so that they can make competing products and open piracy of the software by customers and suppliers. It is copyright law from the legal point of view, that is the focus of this fact sheet, and what the court is looking for in terms of proofs.

Patent law and copyright law offer the main source of protection for software. Copyright will protect all but the most trivial computer programs.
Patent law can protect software inventions, and design law may provide indirect protection of programs stored on integrated circuits.

There is no precise definition of computer software in UK legislation, which is probably due to rapid rate of change and introduction of new developments in the field of computers.
It should also be noted that computer hardware comprises of tangible, physical pieces of mechanical and electronic equipment ancillary to the operation of the software. Computer software is a collection of items and materials associated with the development and operation of a computer program, but which does not include computer hardware.

A computer program and preparatory design material for a program is protected as a literary work under the Copyright Designs and Patents Act 19881.

1. The program must be recorded in writing or otherwise; but this is defined to include writing in code, not necessarily by hand, and ‘regardless of the method by which, or medium in or on which, it is recorded’

2. This is wide enough to embrace storage in a computer. There has to be sufficient labour, skill and judgement to satisfy the requirement that there is an ‘original literary work’

3. The implementation of the Software Directive ("The Directive") has made no alteration to the above general principles, but the Directive seeks to impose a text of originality for software, which requires the program to be ‘the author’s own intellectual creation’

4. The British implementation is defective in not introducing this wording

5. Copying a program stored as data in a computer, includes storing the work in any medium by electronic means. This includes the making of copies which are transient or are incidental to some other use of the work

6. The Software Directive requires the exclusive right to cover any permanent or temporary reproduction of a program by any means and in any form, in part or in whole, to be authorised, including loading, displaying, running, transmission and storage. The protection of a computer program extends beyond the actual program code, whether source or object code, to ‘non-literal’ elements of the program, such as its structure, sequence of operations, user interface and database structure.
The copyright in a program is infringed if a copy is made of the whole or a substantial part of it without the permission of the copyright owner

7. The fact that a computer program will not run without the part copied is not relevant to determining whether the part is substantial, nor is the fact that the part copied is used frequently during the operation of the computer program

8. Each case is one of fact, there is no specified percentage of infringement

9. Copyright also covers selective, altered, summarised and otherwise varied versions of a work, where it still involves substantial reproduction of the original. Indeed, it is explicitly provided that adaptation, as an act of infringement, includes making an arrangement, an altered version or a translation or a program.

Certain factors can be identified when determining whether a defendant has copied and the law recognises that copyright can be infringed indirectly. Additionally, it contemplates intervening acts which do not themselves infringe copyright and the making of copies which are transient or are incidental to some other use of the work.

However, where the copy is indirect, it is highly probable that the code of the second program will be significantly different to that in the first, even if both are written in the same programming language. This might be sufficient to defeat the possibility of a finding of infringement by indirect copyright in these circumstances.

If the original program is altered, perhaps in an attempt to disguise its origins or to improve it, the question of copying arises. If the alterations are numerous, it may be less easy to infer copying. Re-writing the program in a different language will make it very hard to prove copying. However, even though the structure of two programs may be different, any similarity in the sequence of operations carried out by the programs may suggest the possibility of non-literal copying.

Even more difficult is the situation where the new program is written using a ‘fourth-generation’ language, as they are dissimilar to traditional programming languages such as BASIC and COLBOL. The question whether the program has infringed is likely to turn either upon analysis of actual program content, or else upon analysis of those elements, which together make up the program. These elements often form the ‘sequence, structure and organisation’ of the program. An understanding of how the elements work together gives a ‘look and feel’ to the program, and if that can be said to have been recreated, a finding of infringement may follow, even in the absence of line-by-line copying.

The Software Directive specifies that ‘expression’ alone is protected, and not the underlying ideas and principles.

Computer Associates v Altai was the first to establish a means of determining which non-literal elements of a program can be copyrighted. This case set forth the ‘substantial similarity’ test for computer program structure, and the famous ‘abstraction-filteration-comparison’ test. These are tools to identify ideas and expressions, and the test has frequently been praised for its clarity.

A test was devised to decide if copyright subsisted in the elements of the user interface. This directed someone to look at the idea that is being expressed and see if there are other ways of expressing that idea. The court held that a method of operation was ‘the means by which a user operates something’. The definition given is similar to that of a computer program, which could exclude all computer programs from copyright protection. The impact of this decision is to give a green light to rival manufacturers independently to create programs which ‘look and feel’ like those on the market, as non-literal aspects of a program such as screen interface are not protected by copyright.

Richardson v Flanders, was the first consideration of non-literal copying in English Courts. The ‘abstraction, filtration and analysis’ process found in the whole program there were seventeen apparently similar elements, but that of these only three constituted infringement, all of them aspects of the display to the user. By just comparing the functions the court merely examined what the programs did without comparing the underlying program itself, and in doing so it was in effect offering copyright protection to those functions.

Copyright cannot prevent the copying of mere general idea, but can protect the copying of a detailed idea, with approved court “tests“ to be adapted to the circumstances of each case. Substantial parts are only those where the author’s skill and labour can be found.