Intellectual Property

Intellectual Property and Information Technology

Computer programs and software are protected by the law on copyright. The instructions in the program are set in code or a format which is be read by the computer. Therefore, a program is capable of expression in a written or literary format. An original program, that is the author or programmer’s own creation is protected by copyright. Materials used in the preparation of the program may also be protected by copyright

A software-based invention may be part of a process of which a computer program is integral, in which case it may be patentable. The software must have technical character.  It must produce further technical effect going beyond the normal interaction of software and hardware.  A program which works an industrial process or machinery may be patentable.


Copyright in Software

A European Union Directive requires states to protect software and computer programs as intellectual property.  Copyright legislation was amended to provide specifically, that a computer program is a literary work. Programs would almost certainly have qualified as literary works under copyright law in any event. 

The harmonisation of copyright at European Union level was part of the single market strategy of the European Union. As with other forms of intellectual property, there is no common form of EU intellectual property.  The Directive on software provides minimum common criteria on copyright insofar as it applies to software.

As with copyright generally, the author is the person who created the program.  Where a program is created in the course of employment, it is presumed to belong to the employer.  Different elements may be created by different persons.  There may be joint authorship.  Alternatively, individual elements may be owned by the persons who created them.


Copyright as Literary Work

As literary copyright, copyright in software overs the expression in the form of the computer program, rather than the underlying ideas and principles.  As with literary copyright generally, the computer program will only be protected if it is original in the sense of being the author’s own original creation.  There must be a creative element.

The computer program itself is a series of commands which can be read by and are comprehensible to the computer hardware.  Ultimately, the codes are reducible down to a sequence of binary numbers comprising on/ one or off/ zero.  Programming will generally take place a level above this, which is comprehensible to the programmer.

The computer copyright must be the product of the author’s own creation. It is assumed that the author is a human individual. A computer-generated work may enjoy copyright for the person who organised the operation of the computer program, who would be an author for this purpose


Copyright in Other Elements

Copyright legislation may also protect materials used in the preparation of the program and preparatory design materials.  This may include logical sequences, graphs, designs, pathways underlying the program and expressed in appropriate form.Preparatory material for programs by way of source codes, logical algorithms, designs and programming materials may be protected by literary copyright. 

When converted into a low level machine-readable language, the program exists in machine code or object code.  It is not in a written form. The object code is protected as literary work notwithstanding that it may not exist in publishable form.


Copyright Owner

Software belongs to its creator or author. The general presumption is that where software is developed by an employee, it belongs to the employer. The employment contract may provide otherwise. 

Where the programmer has been commissioned to write source code, the commissioner will not necessarily own the copyright. Where software is commissioned, it is presumed to belong to the person or entity creating it, in the absence of an agreement to the contrary. The commissioner himself may be granted a licence only.

An independent contractor may be obliged to hold the copyright for the benefit of the commissioner under the terms of the commissioning contract.


Rights of Copyright Owner I

The owner of the copyright has the exclusive right to authorise others to do various things in relation to a computer program. This includes copying, adapting, translating, arranging or altering the program.  Translation means a translation from one computer language or code to another.

The exclusive rights of the copyright owner make certain unauthorised acts in relation to and dealing with protected works, in particular, “copying”, infringements of copyright. The copyright owner has the right to authorise permanent or temporary reproduction of the program, by any means or in any form.  This includes loading, displaying, running, transmission or storage of the computer program, as required for such reproduction.


Rights of Copyright Owner II

The owner of the copyright in software has the right to do certain restricted acts and to authorise others to do so in much the same way as other literary copyright owners. They include

  • copying and distributing the software and making it available to the public. This right is one of the principal rights and gives the right to sell and exploit the software. Copying can take place through any means or media;
  • making an adaptation of the software; the right to make an adaptation covers the creation of other versions or adaptations, including translation into different computer codes and languages.

Artistic and Musical Elements

Artistic works, as manifested in the visual images of a computer program, may be protected by artistic copyright.  Artistic works include photographs, drawings, maps, charts, engravings.  Artistic work, as with literary work, is protected irrespective of artistic merit. The issues of images and appearance are particularly relevant in the context of computer games. 

Infringement of artistic copyright may arise, if there are substantial similarities, so close and numerous that they are likely to be the result or copying, rather than coincidence.

Sound effects may be protected as musical copyright. Once again, the copyright does not subsist in respect of the abstract idea, but in its concrete expression.  Where the similarity is at a high level of generalisation, there is less likely to be infringement. 


Reverse Engineering and Transient Copies

It is deemed legitimate that computers should work together and be capable of normal exploitation.  Otherwise, software owners could restrict fair use and competition and achieve a monopoly through intellectual property rights.

It is not an infringement for a lawful user to study, observe, test or functioning the program in order to determine the ideas and principles which underlie any element of it, where this is done by lawfully performing the acts of loading, displaying, running, transmitting or storing the program.


Interoperability

The legislation immunizes certain things which would otherwise be an infringement of copyright. A person lawfully using copyright may make a backup, which is necessary for the purpose of the lawful use. Transient or incidental copies, which are required for the use of the work by persons to whom it has been lawfully made available, do not constitute infringement. This ensures that temporary caching is not an infringement

The copying of a program in the course of being run, which is necessary to achieve interoperability is not a breach.  There are conditions.

Where translation or adaptation is necessary to achieve interoperability of independently created computer programs, then they are deemed authorised subject to certain conditions. They act must be performed by the licensee or another person, having the right to use a program. The reproduction and translation must be legitimate and compatible with fair practice.

The information necessary to achieve interoperability, must not have been previously readily available to the person. The acts must be confined to the parts of the program which are necessary to achieve interoperability.

If the information is acquired in this way, it may be used, only to achieve interoperability of programs.  It may not be used for the production or development of a computer program, substantially similar in its expression to the interoperable other, or for any other act which infringes copyright.


Licences

Software licensing operates in much the same way as copyright licensing. A licence may be exclusive or much more commonly, non-exclusive. See the Information Technology section of this guide in relation to software licensing. 

The owner of the copyright has the exclusive right to distribute it to the public.  The copyright owner may control and determine how it should be made available to the public.  This includes distribution in any medium.

Software is usually distributed under the terms of licences, which restrict the terms of use.  Generally, the terms and conditions are accepted as part of the download process or in other cases, when the program is first run. This is usually sufficient to constitute a binding licence agreement, governing the use of the software.  

Formerly, so called shrink wrap licences were commonly used when software was distributed on CDs for installation.  The shrink wrap licence appeared in a sealed wrapper on the case/ box. Users where are required to agree the licence terms before unpacking and using the work. They were generally displayed on paper than could be read through shrink-wrap packaging. Once the end user opened the packaging, the user was deemed to have accepted the licence.


Infringement

Whether or not copyright has been infringed, is a matter for assessment by the court.  The copying must generally relate to a substantial part of the protected work.  It is not an infringement for a lawful user to make a back-up copy which is necessary for the purpose of use.

Generally, the claimant will need to show similarities between parts of the protected work and the alleged infringing work.  If the resemblance is sufficiently significant, it is a matter for the defendant to prove that this is not due to copying. Similarities between inessential and trivial parts may be indicative of copying.  Ultimately, the question may be a difficult one of fact. They may both derive from independent sources in the public domain, in which event there is no copying.  

As with books and other written works, it may be alleged that a non-literal copying constitutes infringement.  There are different views as to the extent to which copyright subsists in the “look and feel” of a program and its structure as it appears to the end user. Such copying may constitute infringement, notwithstanding that copyright does not generally concern itself with functional effects.


Infringment and Distribution

The distribution of infringing items online constitutes infringement.  It is infringement if a person sells, rents, lends, exposes for sale, rent or loan, an infringing copy.  It is infringement if a person transmits works through a telecommunications system, knowing or having reason to believe that the infringing copies of the works may be made by means of the reception of the transmission in the State or otherwise.  

It is secondary infringement to make available copies of works which are known or where there is  reason to know it to be infringing.

The sale and making available of pirated copies of goods through the internet will constitute primary or secondary infringement. The facilitation of the distribution of pirated copies of goods through the internet, may constitute secondary infringement.   Secondary infringement includes facilitation of the distribution of works which infringe copyright.  The person providing the facilities, such as the website operator, may be liable for secondary infringement, if they have reason to know that the items are infringing.

Infringement also constitutes a criminal offence.


Copyright in Website

Websites constitute a form of media in which written works, images, and sounds are reproduced and made available.  Copyright may subsist in the various of the site elements as artistic, literary or musical works. 

Artistic works which are covered by copyright include photographs, paintings, drawings, diagrams, maps, charts, plans, engravings, lithographs, woodcuts, prints, similar works, collages or sculpture.  Visual website elements may be protected as such.

The protection of photographic images requires a relatively low standard of originality.  Any degree of creativity and labour are likely to be sufficient.  Digital images are likely to be artistic works under this criterion.  They may qualify as collages.

If a page is lawfully put on a website, there is likely to be deemed a consent or licence for third parties to link to it.  There have been cases where arguments have been accepted that the links were cable programs so that their inclusion breached and infringed copyright. 


Database Rights I

Databases are a collection of data or other material arranged in a systematic way and individually accessible by electronic or other means.

The Copyright Act may protect the selection or arrangement of content in a database.  What is compiled may or may not constitute copyright material protectable in itself.  Compilations may readily attract copyright. There must be some skill and investment of time in compiling the database.  If there is an element of skill in selection, the requisite criteria for copyright will be usually met. The author of the database is the person who creates it.

EU law protects databases. Where a database does not qualify as an original work for literary copyright, it may qualify for separate database protection. There is a special 15-year database right.  The owner the database right may extract or reuse parts of the database or authorise others to do so.  A substantial extraction or multiple extractions of insubstantial parts may constitute infringement if the use is prejudicial to the interest of the owner.

The database right covers electronic and non-electronic databases. The work must be systematically and methodically organized. Substantial investment must have been undertaken in obtaining, verifying and presenting the contents. Financial and human technical resources must be invested.


Database Rights II

The database right is separate to any copyright in the underlying content. The database right lasts for 15 years. However, a substantial change, including new additions, alterations and operations may comprise a new database.

The database owner enjoys the right to, prevent reproduction, translation, adaption arrangement or other alternation, public distribution, public communication, performance or display.

. It also incudes the right to do or authorise the following;

  • extraction; being the permanent or temporary transfer of all are substantial part of the medium;
  • reuse;
  • making the content available to the public.

It is an infringement to make the work available to the public, adapt or copy the work

Lawful users may use and extract insubstantial parts of the database.  This is valid notwithstanding a contract to the contrary.  However, other copyrights must not be infringed.


References and Sources

Legislation

Electronic Commerce Act 2000

 Electronic Commerce Act, 2000 (Commencement) Order 2000, S.I. No. 293 of 2000

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004,

European Communities (Distance Marketing of Consumer Financial Services) (Amendment)

Regulations 2005, S.I. No. 63 of 2005

 European Communities (Protection of Consumers in Respect of Contracts Made by Means of

Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (Protection of Consumers in Respect of Contracts made by Means of

Distance Communication) (Amendment) Regulations 2010, S.I. No. 370 of 2010

Electronic Commerce (Certification Service Providers Supervision Scheme) Regulations 2010, S.I. No. 233 of 2010

European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, S.I. No. 336 of 2011

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment)

Regulations 2014, S.I. No. 250 of 2014

European Union (Consumer Information, Cancellation and Other Rights) (Amendment)

Regulations 2016, S.I. No. 336 of 2016

EU Legislation

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR)

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)

Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European

Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004

Irish Books

EU Data Protection Law Kelleher & Murray           2018      

Information & Technology Communications Law Kennedy & Murphy         2017      

Social Networking           Lambert               2014      

Law Society PPG Hyland Technology & Intellectual Property Law                 2008      

Information Technology Law in Ireland   2 Kelleher & Murray       2007      

Data Protection Law in Ireland: Sources & Issues 2 Lambert 2016

Privacy & Data Protection Law in Ireland                Kelleher               2015      

Data Protection: A Practical Guide to Irish & EU Law         Carey    2010                      

Practical Guide to Data Protection Law in Ireland A&L Goodbody 2003

Contract Law in an Electronic Age Haigh 2001

Contract law McDermott 2nd ed 2017

EU and UK Texts

Cover of Getting the Deal Through: e-Commerce 2018 Robert Bond 2017

EU Regulation of e-Commerce: A Commentary Edited by: Arno R. Lodder, Andrew D. Murray 2017

Butterworths E-Commerce and IT Law Handbook 6th ed Jeremy Phillips 2012

Internet & E-commerce Law, Business and Policy Internet & E-commerce Law, Business and Policy 2nd ed Brian Fitzgerald, Anne Fitzgerald, Gaye Middleton, Yee Fen Lim, Timothy B Beale 2011

E-Commerce and Convergence: A Guide to the Law of Digital Media E-Commerce and Convergence: 4th ed Edited by: Mike Butler 2011

Blackstone’s Statutes on IT and e-commerce Blackstone’s Statutes on IT and e-commerce 4th ed Edited by: Steve Hedley, Tanya Aplin 2008

E-Commerce Law E-Commerce Law Paul Todd 2005

A Practical Guide to E-Commerce and Internet Law 2nd ed Osborne Clarke 2005