8.2.1 Copyright on software

Historically, there has been a long debate about whether software should be protected under patent law, copyright law or a separate legal regime. Ultimately, it was decided to protect software primarily under copyright law. This was a practical choice. Because software is written in programming language, it can be expressed as a kind of text. That is why computer programs are protected as literary works under copyright law. This principle is laid down in Article 10, paragraph 1, of the TRIPs Agreement and Article 4 of the WIPO Copyright Treaty.

Copyright protection of software relates to the concrete expression of the computer program, i.e. the specific form in which the programmer has expressed his intellectual creation in the source code. The source code concerns the instructions written by the programmer in a programming language and readable by humans. The target code is also subject to copyright protection. The object code comprises the binary, computer-readable and executable instructions generated from the source code by a compiler or interpreter. The object code is therefore in fact the translation of the source code into a computer-readable form.

The same conditions apply to copyright protection of software as to any other work. The source code and object code must demonstrate originality. They may not be derived from earlier software and the programmer must have made creative choices when writing the source code. If these conditions are met, the computer program is legally protected under copyright.¹

Copyright does not protect an idea underlying a work. This means that the functionality, logic, method or purpose of a computer program and the processes, procedures, algorithms, programming languages ​​and layout of data files that are used in the context of a computer program to be able to use certain functions of the program are not protected by copyright.

Copyright does not create a monopoly on the functionality of software. It grants the creator or right holder exclusive rights to permit or prohibit the reproduction (copying or editing) and publication (publishing, marketing, lending, renting or making available on demand) of a computer program. However, the creator or right holder cannot prohibit others from developing their own computer programs that pursue the same or similar purpose or functionality.

Copyright on software largely follows the same rules as those that apply to any other work. For example, the rules for authorship and legal succession are the same, right holders are entitled to the same broad exploitation rights and the term of protection is determined in the same way (see Copyrights and Copyright holders). However, there are a few special provisions concerning computer programs that are recorded in Chapter VI of the Copyright Act.

Based on the right of reproduction, the right holder may prohibit others from copying or taking over the computer program in whole or in part or from changing the source code. The law also stipulates that the right of reproduction also includes reproductions that are necessary for loading, displaying, executing, transmitting or storing the computer program. Someone who has lawfully obtained the software, such as the person who has purchased a computer program, may make these reproductions to the extent necessary for the use of the computer program. The lawful acquirer may also make a backup copy if this is necessary for the intended use.

In addition, the law permits the operation of software to be observed, studied and tested in order to discover the underlying ideas and principles. There is therefore an explicit authority to ‘reverse-engineer’ the software.

Furthermore, the ‘decompilation’ of a computer program, the reconstruction of a source code based on the target code, is permitted under certain circumstances. The law stipulates that a computer program may be decompiled, not in order to create a competing program that imitates the decompiled software, but to create compatible programs that can communicate with the decompiled software and are therefore interoperable. Furthermore, it follows from case law that decompilation is permitted to correct errors in the proper functioning of a computer program.

Graphical user interface and other elements

When executing a computer program on a computer, users are primarily confronted with the graphical user interface (GUI). These are the visual elements that enable the user to communicate with a computer program and thus instruct the program (software) to control the computer (hardware). Think of the various icons in the taskbar or the menu of a computer program.

However, the GUI itself is not a computer program. The special provisions regarding computer programs therefore do not apply to GUIs. A GUI can be independently protected by copyright, if the designer has made creative choices in the design of the interface. When decompiling a computer program for the purpose of interoperability or error correction, the source code may be reconstructed on the basis of the target code, but the GUI may not also be copied to the extent that it is protected by copyright. That would infringe the copyright on the GUI.

The same applies to the graphic and sound elements of, for example, video games. These can be independently protected by copyright if they are the creator’s own intellectual creation, but do not themselves qualify as a computer program.

Video games

Video games generally consist of different types of works. In addition to software (source and target code), many video games contain a storyline, characters, images, animations, video, music and texts. Provided that the requirements are met, each of these works enjoys copyright protection. In principle, the copyright on the various works can lie with different creators. Sometimes hundreds of people can have made a creative contribution to a single video game. Because permission must be obtained from each rights holder for the release of the video game, the large number of rights holders can greatly hinder exploitation.

In practice, it is therefore arranged that all copyrights on the video game are, as much as possible, in the hands of the producer of the video game. The Copyright Act already provides for this to some extent. Insofar as creators have contributed to a video game under employment, the copyrights are in principle already held by the producer as employer under the law. For components of a video game that have been created by freelancers on assignment, the producer will usually have the copyrights contractually transferred to him. In addition, the producer can stipulate that the creator waives the right to mention his name, so that the rights are automatically granted to his/her company. For existing works that are included in a video game, such as the music that plays in the background of a video game, the producer will usually arrange permission by concluding a license agreement with the relevant copyright holders.

8.2.2 Software patent law

The starting point of patent law is that software as such cannot be patented, because computer programs are not considered inventions. However, the term invention contains the requirement of technical nature. A computer program that has a ‘further technical effect’ when executed on a computer, beyond the effect of the normal control of the computer, can therefore be patented. The computer program must provide a technical solution to a technical problem. Inventions with software must also meet the patent law requirements of novelty, inventive step and industrial applicability (see Requirements for a patent).

Examples of computer programs that have a ‘further technical effect’ when executed on a computer are programs for controlling an anti-lock braking system (ABS) in cars, determining emissions from X-ray equipment, compressing data, encrypting electronic communications, restoring distorted digital images or training artificial intelligence. A ‘further technical effect’ can also concern the internal functioning or security of the computer. For example, programs for distributing the processor load, memory allocation or securing integrity during start-up offer a technical solution to a technical problem.

Patent protection is broader than copyright protection in the sense that patent law does grant a temporary monopoly on the technical functionality of the software-related invention. Patent law gives the holder the exclusive right to prohibit others from applying and using the patented invention for commercial purposes. It is therefore not permitted to market computer programs with the same ‘further technical effect’, or an effect that is more or less equivalent, during the period that the patent is valid.

8.2.3 Other ways to protect software

In addition to copyright protection of computer programs and patent protection of software-related inventions, software or parts thereof can also be protected by other intellectual property rights. For example, the source code of computer programs can be protected as a trade secret. Graphic features of computer programs, such as icons or pictograms of the graphic user interface, can be protected as drawings under design and model law, provided of course that the specific protection conditions are met (see Designs).

In addition, the producer of software can of course contractually agree on additional protection with third parties, for example in license agreements.

Software can of course also be protected technologically, by security measures such as encryption methods and copy protection. The Copyright Act offers protection against circumvention of such technological protection measures.

8.4.1 VESA (Video Electronics Standards Association)

Vesa is a non-profit corporation, which represents more than 300 companies. These companies are members of the corporation. It sets and supports interface standards for computers and consumer electronics.

The vision statement (from the website):

VESA’s vision is continual growth in technical standards development and evolution into an international trade association, with world-wide membership driving standards initiatives, product implementations, and market implementation.

8.4.2 Displayport

The displayport connection between a computer and a monitor is an important Vesa standard. The Vesa members are allowed to use the displayport logo on their products if these meet the requirements of the standard. In figure 28 the logo is displayed.

Question:

How can the use of the logo be limited to members who comply to the standard? Click for answer.