10 Things Software Developers and Startups Need to Know About Copyright Protection

Photo credit: Financial Times

This post is designed to provide information about computer software and the legal protection available for it under UK law. I will also touch on other relevant intellectual property rights and the biggest software development copyright case to date, Google LLC v. Oracle America, Inc.

I’m going to address the most frequently asked questions by startup companies regarding UK copyright law, and how it also applies to technological works. I will also touch on the concept of fair dealing.

In the UK, computer programs and business methods are regarded as literary works, which means they are protected by Copyright under the Copyright, Designs and Patents Act 1988. The Copyright (Computer Programs) Regulations 1992, extended the rules covering literary works to include computer programs. Although traditionally, the most common form of computer software protection has been Copyright, today software patents are becoming more popular. Both options should be analysed when assessing the protection for your startup’s software.

What is Copyright Law?

Of all the types of intellectual property rights, Copyright is probably the easiest to acquire. But it can be hard to understand. Copyright is given to the original creator, which protects their intellectual property from being copied by someone else without the necessary consent.

Copyright protection is available for works that are tangible and fixed form, so you can’t copyright an idea or a concept. Work should be original and show a degree of skill, labour or judgement to qualify for copyright protection.

Does Copyright Need to Be Registered?

In the UK, provided the work is original, Copyright will be established automatically the moment it is created and fixed in a tangible form without any need for registration. However, if you plan to sue someone for infringement, you can mark copies of your work with a legal notice including the © symbol, for added protection.

But otherwise, registration is optional, and unlike patents, copyrights aren’t given by the government.

How Long Does Copyright in The UK Last?

Copyright is protected for either the life of the creator plus 70 years from the creator's death or, for published works, for 70 years from the first publication date in the UK. However, there are many exceptions to this rule.

Who Owns Copyright?

The creator of the work is generally the first copyright owner.

Who Owns the Copyright if I Created It During My Employment?

If a work is created as part of employment, then the owner will be the employer of that person who created the work.

If an independent consultant or freelancer creates a work, then generally it will be owned by the creator of the work, unless there is an agreement between the parties to the contrary.

How Are Computer Programs Dealt? Copyright or Patent Protection?

Computer software is considered a literary work and is protected by Copyright under the Copyright, Designs and Patents Act 1988. Copyright law can apply to all technological works such as apps and video games. However, with the constant development of advanced technology, this area is becoming more complicated. The Patent covers inventions, both physical and virtual (software), as well as business processes, but computer software is an interesting discussion because, in some situations, it requires patent protection. There is a complex intersection of Copyright and Patent law that covers computer software, and it would be best if you spoke to an IP Lawyer.

Can you Protect an Idea With Copyright?

Neither copyrights nor patents protect ideas. Also, an algorithm is not eligible for copyright protection because it is factual and not an expression of its author's creativity.

What Is Fair Dealing?

Fair Dealing is used to establish whether a use of copyrighted material is legal or infringes Copyright. Fair dealing is a legitimate defence if it falls under news reporting, teaching, research, review or quotation or criticism of the work. A statutory definition for fair dealing does not exist, which means there is much room for interpretation.

Fair dealing is a rather complicated concept. However, the IPO lists certain factors to clarify where fair dealing is a defence. For instance, in the landmark case of Google LLC v. Oracle America, Inc., Google defends its use of Oracle Java API under ‘fair dealing.’

How Does Fair Dealing Affect Technology Copyrights in the UK?

The fair dealing rule affects copyrights for technology-related works such as software programs.

Oracle sued Google for patent and copyright infringement because Google used Oracle’s Java API in its Android software. The case is complicated and raises two fundamental questions:

1. Does copyright protection extend to a software interface?

2. Does Google’s use of the Java API establish “fair dealing”?

If the Supreme Court favours Google’s position, this would mean less protection for Copyright for software code developers. As a result, there might be less incentive for innovation in the industry.

On the other hand, if the court favours Oracle, this could give software developers too much power with potentially harmful effects on the tech industry.

This is a landmark case, and referred to as “the copyright case of the century,” the Supreme Court could decide the future of software protection in Google v. Oracle.

Copyright is a broad and complex subject, and many issues will need to be dealt with by courts. The most common form of computer software protection has been Copyright in the UK. However, with more innovation and technological advances, Copyright is becoming less sufficient, and software patents are becoming more favoured. It would be best if you thought about both options when assessing the protection for your software.

This post should have given you a good understanding of Copyrights in the UK. If you have questions, consult with a lawyer who specialises in Copyright.

As with all legal matters, you should consult with your lawyer.

Ariella, Tech Enthusiast, Supporting Companies @Axis. Lawyer in Former life @Baker&Mckenzie.