Updating copyright law in the technological era
The rapid pace of technological innovation continually adds further complexities to copyright law. Currently, unless patent protection can be secured, software code is predominantly protected by copyright (the same intellectual property right that protects printed media), which is not always fit for purpose.
To combat this, the EU has legislated with a number of Regulations and Directives, however, these are piecemeal and don’t tackle the issue as a whole. Instead, a total overhaul of copyright law may be needed.
What classes as coding copyright infringement?
Copyright infringement can take a number of forms, including:
• Copying a protected work without permission
• Communicating and issuing copied work to the public
• Adapting software code without permission
• Lending copied work
To succeed in a claim for copyright infringement, a right-holder must be able to evidence copying of the relevant work. There are two types of copying relevant to software infringement claims: literal and non-literal.
• Literal copying – This is the direct and complete copying of some or all source code without permission.
• Non-literal copying – This is when a person copies the architecture of the software or the user interface, instead of copying the source code directly. Due to this creation of ‘new’, but typically very similar code, UK case law tells us that it may be difficult to succeed in an infringement claim.
Communicating and issuing copied work
Social media has thrown a further spanner in the works for copyright protected material, as it allows infringing works to be shared to a large audience with very little control of overall reach. Therefore, finding the origin of some infringement cases could be almost impossible.
Consequences depend on the severity of the infringement. Some infringement cases lead to injunctions, others, to damages.
• Injunction – Stops a person from continuing to copy, sell or share infringing code. An infringer may also have to destroy any copies they have stored.
• Damages – These can vary, however, should a person have received an income from the infringing code, then damages could include the repayment of all profits. Additional damages are payable where a right-holder can show that the infringement was “flagrant”.
How can coding-related copyright infringement be stopped?
Now that many people, especially children, are becoming increasingly skilled at using technology (including developing and manipulating underlying source code), clearer warnings need to be issued alongside copyrighted works. For example, prominent warnings may be displayed at the start of video games that state it is illegal to copy any part of it without permission.
Code creators should also check that the technical security measures they use are as effective as possible, so it is more of a challenge for people to access the underlying source code. This could include patching known vulnerabilities as soon they are made aware of them. Should hacking still take place, sophisticated monitoring software may be used, which picks up the IP address of the hacker, making them easier to trace.
Unfortunately, the copying of code is incredibly difficult to defeat completely, and enforcing rights can be complex and expensive. Copyright law needs to evolve at the same rate as technology if right-holders are to keep ahead of the game and protect their valuable intellectual creations.
To discuss any aspect of this blog or to discuss your own copyright or trademark issues, contact Kerry Russell on 0121 237 3017 or any member of our intellectual property team, or click here to get in touch.