Legal Protection of Digital Property
PhD(Computer Science) LLM(Intellectual Property) Department of Computer Science
Software Copyright in HK
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• governedbytheCopyrightOrdinance (Cap 528)
NB. Hereinafter, references to sections are references to the Copyright Ordinance unless stated otherwise.
Protected Subject Matter
1. Source codes and object codes
– s.4(1): computer programs are protected as literary works
– “computer program” not defined in the Ordinance but not in dispute that it includes source codes
– one argument against object codes being afforded literary copyright: not human- readable, therefore not “literary” works
– now clear that object codes are protected
NB. TRIPS, Art 10(1): “Computer programs, whether in source or object code, shall be protected as literary works under the “. As a member of WTO, HK must give effect to TRIPS: Art 1(1).
2. Algorithms
– steps for the solution of a specific problem independent of the code in which such steps will be expressed
– algorithm vs program:
» an algorithm is expressed in natural language and denotes the steps for solving a problem whereas a program is an implementation of such steps using a specific programming language
» related to idea/expression dichotomy – is algorithm idea? Or expression?
– Ibcos Computers v Barclays Mercantile [1994] FSR 275: crucial question is whether the idea is a general idea or a detailed idea — the former is not protected but the latter is
– Cantor Fitzgerald Int’l v Tradition (UK) [2000] RPC 95: if a substantial part of the programmer’s skill and labour resides in the algorithm, may be protected
NB. Copyright protection of an algorithm only goes to the way the algorithm is expressed ie. the procedural steps set out in natural language.
NB. Implementing an algorithm in the form of a computer program is use of the algorithm (not copying)!
Q: What should one do to prevent his algorithm from being implemented?
Criteria for Protection
1. Originality
– 2 conditions (see earlier notes)
– can incorporate pre-existing materials, but must impart to the work some quality or character which the pre-existing materials did not possess: Interlego v Tyco [1988] RPC 343
NB. Most relevant to object-oriented programming where programs are built from pre-defined objects.
2. Fixation
– s.4(2): copyright subsists in a literary work only when it is recorded, in writing or otherwise
– s.198: “writing” includes any form of notation or code and regardless of the method or medium in which it is recorded
– satisfied by programs in hard disk, CD, USB, magnetic tape etc
NB. Programs in main memory also sufficiently fixed (similar to writing down on paper but erased later).
E1: X implements binary search on an array based on a flow chart in a book. X’s program copyrightable?
E2: X has written several objects for drawing straight lines, ellipses, rectangles and triangles. Later Y incorporates these objects into his CAD program. Y’s program copyrightable?
Authorship
• author is the person who creates the work: s.11(1)
• collaborative works — two cases:
1. distinctauthors
» contribution of each separable from that of others (eg. each writes one module of a program) — each is the author of his own part
2. jointauthors
» contribution of each not separable from that of the others — all are “joint authors” of the entire work: s.12(1)
NB. Contributions of an author must not be trivial and must go to the expression of the work.
NB. Skill and labour in testing a program not sufficient for authorship: v Key Radio Systems [1998] FSR 449.
Ownership of Copyright
• author is 1st owner: s.13
• collaborative works — two cases:
1. distinctauthors
» each owns the copyright in his own part
2. jointauthors
» all authors own the copyright in the whole work jointly in equal shares as “tenants in common”: Lauri v Renad [1892] 3 Ch 402; Stuart v Barrett [ 1994] EMLR 448.
» but any act requiring licence requires the licence of all: s.194(2)
Employee work
• workmadeinthecourseoftheauthor’s employment copyright belongs to the author’s employer subject to any contract to the contrary: CO, s.14(1)
• 1stquestion:”employee”or”independent contractor”?
– not difficult to answer in computing field
• 2ndquestion:”inthecourseof employment” is a question of fact
– translation by a journalist done in his own time and employer had paid him a separate fee: Byrne v Statist [1914] 1 KB 622
– lectures given by an accountant for which employer had provided secretarial help and paid expenses in relation to the lectures: v MacDonald (1952) 69 RPC 10
Commissioned work
• workdevelopedbyself-employedauthor on commission ownership governed by contract between the author and the commissioner: CO, s.15(1)
• courtmayinferanimpliedagreementon ownership in circumstances suported by clear evidence: Computers v Flanders [1993] FSR 497
NB. Commissioner’s statutory rights:
– anexclusivelicencetoexploitthe commissioned work for all purposes that could reasonably have been contemplated by him and the author at time of contract; and
– powertorestrainanyexploitationofthe work for any purpose which he could reasonably object: CO, s.15(2).
E1: X, computing officer of T Ltd, writes a program to manage the company’s inventory. Owner of the program?
E2: As in E1. X writes a program during office hours using company resources for his girlfriend.
E3: Y, office assistant of the CS Dept, writes a program monitoring the activities of the CS lecturers.
E4: Z, a free-lance programmer, contracts with V Ltd and writes an auditing program for the latter.
Term of Protection
• forliterary,dramatic,musicalandartistic works, term = life of author plus 50 years (expires on 31 December of the relevant year): CO, s.17(2)
• forworksof”jointauthorship”,reference to “author” is to the last surviving author: CO, s.17(7)
E1: X published his software in 2000. He later died on 14 April 2003. Expiration date of the software copyright?
E2: X and Y jointly wrote a piece of software which was published in 2000. They later died on 14 April 2003 and 28 August 2005 respectively.
E3: Windows 2000 was completed in 2000. Expiration date of copyright?
Rights of Copyright Owner (“Restricted Acts”): s.22(1)
1. copythework
2. issuecopiestothepublic
3. rentcopiestothepublic
4. makeavailablecopiestothepublic
5. perform,showordisplaytheworkin public
6. broadcast or include the work in a cable programme service
7. makeanadaptation
8. do any of the above in relation to an adaptation
NB. Doing, or authorising another to do, any of the restricted acts without licence infringes copyright: s.22(2) (more on “authorisation” later).
NB. All these are primary infringements, and ignorance of the law that these acts infringe copyright is no defence.
NB. Suffice for infringement if the restricted act is performed in relation to a substantial part of the plaintiff’s work: s.22(3).
NB. Infringement can be direct or indirect and it is immaterial whether any intervening acts themselves infringe copyright: s.22(3) (“causal link”).
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