CS代写 MAY 17TH Live Session – cscodehelp代写
MAY 17TH Live Session
April 15th Live Session
Copyright By cscodehelp代写 加微信 cscodehelp
Software copyrightability
Objectives from this session:
You should be able to explain:
The scope of copyright protection for computer programs – what components of software are clearly protectable and what are clearly not protectable and where there is uncertainty
The policy reasons for limiting such scope
https://www.menti.com/9izdddhvam
Software is eating the world (2011)
disruption of industry – digital transformation
Much of it is open source –
Collaboratively developed Use is managed through various types of licenses [ pros and cons ]
Great deal is still proprietary
Use must be negotiated individually, may or not be available for use by others
Software – ‘eating the world’
IP Laws – incentivize software development but also seek to encourage competition
SOFTWARE IP PROTECTION
Trade Secret
how the software is ‘written’- original expression and its ‘plot’ if ‘expressive’
What the software ‘does’ – if an innovation (functions)
Proprietary code and methods in software – when not open source
Software elements
Non-literal
everything else
Different IP Laws protect various different elements of software – try to design the law to avoid both over and under protection
Copyrightability of Software : specific regulations
China – Software Regulations
EU – Software Directive – enacted as law in all EU member states
US – no separate regulation, copyright law’s general scheme for all copyright works
Copyrightability of Software : specific regulations
Briefly: copyright laws permit
Emulation of software’s functions
Certain uses of a competitors software -for the purpose of developing competing products
SPECIAL REGULATION – SOFTWARE REGULATION OF CHINA
https://www.wipo.int/edocs/lexdocs/laws/en/cn/cn002en.pdf
ALL COPYRIGHTS – AS WITH ANY OTHER WORK
WHAT IS PROTECTED
SOURCE CODE/OBJECT CODE
Documentation
WHAT IS NOT PROTECTED
PROCESSING
OPERATING METHODS
MATHEMATICAL METHODS
AND THE ‘LIKE’
Idea/ expression if merged
PRC Software Regulations
Functions not protected
(for patent law) Article 6 The protection of software copyright under these Regulations shall not extend to the ideas, processing, operating methods, mathematical concepts or the like used in software development.
Allows emulation of functions – (in original expression)
Article 17 A piece of software may be used by its installing, displaying, transmitting or storing for the purposes of studying or researching the design ideas or principles embodied therein, without permission from, and without payment of remuneration, to the software copyright owner.
Expression also not protected if merged with ideas Article 29 The development of a piece of software which is similar to a pre-existing one due to a limit of alternative forms of expression does not constitute an infringement of the copyright in the pre-existing one.
EU Software Directive
Recital (11) For the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive.
In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009L0024&from=EN
US Copyright Law
Section 102 (b) in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work
https://www.law.cornell.edu/uscode/text/17/102
Issue: how is idea separated from expression?
Merger of idea-expression (e.g. Baker V Selden case) 1879
Selden : simplified account keeping, adapting from a ‘double entry’ method to a new arrangement of the ledger in which all pertinent information could be recorded in one “condensed” journal. Book described the method and provided forms (books and method did not meet with much success)
Baker: wrote a similar book – devised similar forms – became very successful. Selden sued Baker for copyright infringement.
Issue: WHAT IS COPIED? IDEA OR EXPRESSION?
Description of method and forms :
expression?
What level of ‘abstraction’ is appropriate?
Highest level Just the new idea of ‘book keeping’
– everything else is expression
Middle level Description of method – expression
Forms – ideas (due to ‘merger’ – not many ways to express forms)
Lowest level Step by step guide and the forms – all are methods, there is no expression
e.g. Baker v RC Beijing Court case: “Pyramid abstraction analogy”
Expression with sufficient detail
a generalized idea
When a copyright owner of a literary work sues others for copyright infringement, such a Pyramid-abstraction analysis should be applied to determine whether similar elements between the plaintiff’s works and that of the defendant are copyrightable expressions or non-copyrightable ideas—the closer to the top, the more likely to be an idea; the closer to the bottom, the more likely to be an expression
Other Unprotectable Elements
Common techniques
Public domain material (such as open source etc)
Can software be copied by a potential competitor
Yes, functions and methods can be copied
But my program must be ‘independently’ developed in a ‘clean room’
Those who ‘examine and test’ the software write specifications
The developers create and code to implement the functions
WHAT THE SOFTWARE DOES (IF NOT PATENTABLE)
Clean room
You see this pudding. By examining it and tasting it you recreate the pudding, without access to the recipe.
You write your own recipe
Have you infringed any copyright in the recipe?
e.g. RARIBLE.COM – a digital platform that allows artists and creators to issue and sell custom crypto assets that represent ownership in their digital work. Rarible is both a marketplace for those assets, as well as a distributed network built on Ethereum that enables their trade without a middleman
‘CLONED’ software
Protection for expression
if the code (source code or compiled code) is re-written or otherwise converted into another computer language
If the source code for the new program is substantially similar to the source code of the program it ‘copied’
IF code is similar for these reasons
third-party source code,
code generation tools,
commonly used elements,
common algorithms, or
common author.
THEN THERE IS NO COPYING
What about ‘non-literal’ elements?
general flow charts
inter-modular relationships
parameter lists and macros
structures, menus, sort routines, database code and database structures etc
graphical user interfaces
Program architecture
Application programming interfaces
What about ‘non-literal’ elements?
Courts in the US and the EU have examined this question in a few cases (more in the US)
The opinion is led by different policies in each region
US is more protective than the EU
CHINA: what is the position? (explore in your cw)
Non-literal elements – protectable to the extent these are ‘original expression’ – creative freedom in expressing and no merger applies
e.g. GUI – protection depends on availability of creative freedom
where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable’.
where functionality-related constrains may lead to a limited number of design options, any GUI element that results from such limited options may not be considered as an original expression as it does not spawn from the author’s intellectual creation but rather from the said design constraints. Where, on the other hand, the design choices in the GUI at issue were not dictated by their technical function, a GUI might ‘be protected by copyright if it is its author’s own intellectual creation’
Cases that have taken 10 years in courts
Oracle v Google (JAVA v ANDROID ‘war’)
At issue: JAVA API reimplemented by Google.
WHAT IS AN API?
Cases that have taken 10 years in courts
WHAT IS AN API? – method, specification? So not copyrightable?
US first court held method and function and not protectable.
US second court held – there were ‘creative choices’ possible and the JAVA engineers spent a great deal of intellectual effort to design as they did. There expressive work. Copyrightable. Fair use did not apply. US$ 10 b in damages awarded to Oracle
US SC: declined to decide. Said Google’s use was ‘fair use’ ( – fair use is ‘tricky’ – so leaves the legal position uncertain)
Cases that have taken 10 years in courts
GOOGLE V ORACLE – US Courts
Arguments on why API should be considered copyrightable and why it should be considered a method only
Arguments on why it is or is not fair use
Cases that have taken 10 years in courts
SAS V WPL ( UK, NORT CAROLINA AND EU COURTS)
Copyright and breach of contract cases.
Try to understand the arguments in your CW
What about the other elements?
Fact dependant – as long as these elements are ‘expressive’ and not merely methods or functions, there will be protection
API: battles in Google V Oracle – 10 years (SC US declined to decide on copyrightability. Held on ‘fair use’)
Read further
https://wipolex.wipo.int/es/text/578387 – ( PRC Case idea/expression)
https://jolt.law.harvard.edu/assets/articlePDFs/v31/31HarvJLTech305.pdf (Copyrightability of APIs)
https://www.kempitlaw.com/apis-software-copyright-in-2021-a-view-from-each-side-of-the-pond/
https://www.eff.org/cases/sas-v-wpl
https://www.eff.org/cases/oracle-v-google
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