Computing related legislation: Copyright, Designs and Patents Act 1988

Overview

Recall questions on the Copyright, Designs and Patents Act 1988, what it protects and for how long, moral rights, copyright compared with patents and trade marks, permitted acts for software, licences, copying public code, and civil and criminal infringement.

What you need to know

Answer each one before you reveal it.

Questions from this subtopic

Each one with the model answer underneath.

1. 1

   What does the Copyright, Designs and Patents Act 1988 protect, and how do you get that protection?

   Model answer

   It protects original literary, dramatic, musical and artistic works, and also sound recordings, films, broadcasts and the typographical arrangement of published editions. Computer programs are protected as literary works, in both source and object code, and preparatory design material for a program is protected too; databases can also qualify. Protection is automatic. It arises the moment the work is recorded in some permanent form, with no registration, fee, notice or copyright symbol required, which is the practical difference between copyright and a patent. Originality in this context is a low bar meaning the work originates from its author's own skill and effort rather than being copied, not that it is novel or inventive. What is protected is the expression, not the underlying idea: another developer is free to write their own program that does the same job, and only infringes if they copy the actual code, structure or other protected expression.

2. 2

   List the acts that are restricted by copyright, and state how long protection lasts for the main categories of work.

   Model answer

   The restricted acts, which only the copyright owner or a licensee may do, are: copying the work; issuing copies of it to the public; renting or lending it to the public; performing, showing or playing it in public; communicating it to the public, which covers broadcasting and making it available online; and making an adaptation of it or doing any of the above to an adaptation. Doing any of these to the whole or a substantial part without permission is primary infringement, and substantial is judged by quality and importance rather than by simple length. On duration: literary, dramatic, musical and artistic works, which is the category computer programs fall into, are protected for the life of the author plus seventy years from the end of the year of death; sound recordings for seventy years from release; films for seventy years from the death of the last of the principal director, authors and composer; broadcasts for fifty years; and the typographical arrangement of a published edition for twenty-five years.

3. 3

   Besides the economic rights, the Act gives authors moral rights. What are they, and how do they differ from the right to stop copying?

   Model answer

   There are four. The right of paternity, to be identified as the author or director, which unusually must be asserted in writing before it can be enforced. The right of integrity, to object to derogatory treatment of the work, meaning an addition, deletion, alteration or adaptation that distorts or mutilates it or is otherwise prejudicial to the author's honour or reputation. The right not to have a work falsely attributed to you. And a right of privacy in photographs and films commissioned for private and domestic purposes. They differ from the economic rights in that they belong to the author personally, cannot be sold or transferred, though they can be waived, and continue to belong to the author even after the copyright itself has been assigned to a publisher or employer. Note a specific carve-out that matters in computing: the paternity and integrity rights do not apply to computer programs or computer-generated works.

4. 4

   A team invents a new file compression method, writes it up in a paper and implements it. Distinguish what copyright, patents and trade marks would each do for them.

   Model answer

   Copyright arises automatically and protects the expression: the wording of the paper and the actual code of the implementation. It does not stop a competitor reading the paper and writing their own independent implementation of the same method. A patent protects the invention itself, the technical method, and would stop that independent implementation, but it must be applied for, examined and paid for, it lasts up to twenty years from filing rather than life plus seventy, and it requires the invention to be new, involve an inventive step and be capable of industrial application. In the United Kingdom and under the European Patent Convention a program for a computer as such is excluded from patentability, so the application succeeds only if the claimed invention makes a technical contribution beyond the running of the program itself; compression methods often can be framed that way, but the exclusion is why software patenting is much harder here than in the United States. A trade mark protects the name and logo they sell it under, is registered per class of goods, and can be renewed indefinitely. The Copyright, Designs and Patents Act 1988 governs the copyright and designs side; patents are principally governed by the Patents Act 1977.

5. 5

   Copyright law would make ordinary use of software impossible if taken literally, since running a program copies it into memory. What exceptions rescue the lawful user?

   Model answer

   The Act contains specific permitted acts for computer programs which cannot be excluded by contract. A lawful user may make a back-up copy where it is necessary for their lawful use. A lawful user may decompile the program where that is necessary to obtain the information required to create an independent program that can interoperate with it, provided the information is not readily available and is not used for anything else. And a lawful user may observe, study and test the functioning of the program to determine the ideas and principles underlying any element of it, while doing any act they are entitled to do anyway. Alongside these are the general fair dealing exceptions: research and private study for a non-commercial purpose, criticism, review and quotation, reporting current events, and since 2014 caricature, parody or pastiche. Routine copying into memory in order to run the program is also covered by the terms of the licence granted by the copyright owner.

6. 6

   Explain how an end user licence agreement, an open source licence and a Creative Commons licence each relate to the copyright the author already owns.

   Model answer

   None of them replaces copyright; each is a permission granted by the copyright owner on stated conditions, which is why copyright is the foundation for all of them. A proprietary end user licence agreement typically grants a narrow permission, for example to install on a fixed number of machines for personal use, while forbidding copying, redistribution and reverse engineering, and it usually licenses rather than sells the software so ownership never passes. An open source licence grants broad permissions to use, study, modify and redistribute, but still on conditions. Permissive licences such as MIT or BSD mainly require the notice to be preserved. Copyleft licences such as the GNU General Public Licence add a reciprocal condition that derivative works distributed to others must be released under the same licence, which is why copyleft is sometimes described as using copyright to compel sharing. Creative Commons offers a standard set of licences for creative works, combining conditions such as attribution, non-commercial use, no derivatives, and share-alike. If you exceed the conditions in any of these, the permission falls away and you are back to plain infringement.

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