UK Intellectual Property Law for Software: Copyright and Patents
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Introduction: UK Intellectual Property Law for Software: Copyright and Patents
The legal system of the UK provides rights to protect intellectual property along with enforcement mechanisms that can be compared to US legislation. The UK is a member of WIPO (World Intellectual Property Organisation). It is also a member of intellectual property protection agreements such as the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention, the Paris Convention for the Protection of Industrial Property, the Geneva Phonograms Convention, and the Patent Cooperation Treaty (Bently et al. 2022). The official UK government body which is responsible for intellectual property rights is Intellectual Property Office (IPO). The official website includes comprehensive information on the law and practice of the UK (Stokes, 2019). The annual report of IP Crime and Enforcement shows that harm related to IP is caused to the economy of the UK (Margetts and Dorobantu, 2019).
This Essay includes the application of Civil and Criminal Law in protecting the right of intellectual property in software patent alongwith Social, Economic, Ethical and Political contexts where intellectual property law is implemented. The issues are highlighted related to socio-legal nature, Changes in law to accommodate new and developing technologies. This essay also sheds light on European and international instruments that may impact English law in software intellectual property. Recommendations for the audience are also prepared after analysing all the aspects.
Application Of Civil and Criminal Law in Protecting Intellectual Property of Software Patent
Software is an important aspect of information technology and it is required by an individual as well as business organisations. Without software, a computer device or mobile phone is useless (Saeidi et al. 2019). An individual or an organisation can develop software and it can be protected in several ways. It helps to protect software from copying or stealing by using the correct type of intellectual property.
Law related to Copyright
It can protect a work and stop unauthorised usage of the software as per “the Copyright, Designs, and Patents Act 1988 (CPDA 1988) and Directive 91/250/EC (the Software Directive)”. It does not involve any costs and CPDA 1988 protects databases, design material, and computer programs (International Trade Administration, 2022). Copyright lasts for 70 years even if the owner dies. Copyright can prevent the following:
Copying work;
Distribution;
lending or renting copies (UK Parliament, 2019);
Playing, showing, or performing one's work publicly
Adaptation
Posting on the internet without permission.
An individual can prove infringement if someone else copied the original copy. U/S 21 of CDPA 1988, one cannot make or adapt someone else's work as it is restricted. However, the issue arises when it comes to non-literal copying (Wagner et al. 2019).
Current situation
Non-literal copying is the current issue in protecting intellectual property rights for software. It does not include one program to another; however, it copies the functionality, operations, styles, or interfaces of another software (Alahmari and Duncan, 2020). However, an infringement is assessed once it is observed that the work should be protected.
Related case law
SAS Institute Inc. v. World Programming Ltd (2013): This case involved the copyright protection of software functionality. The court held that while copyright does not protect software functionality itself, it can protect the expression of that functionality. The defendant had developed software that emulated the functionality of the claimant's software, and the court found that this amounted to copyright infringement.
Law related to software Patent
Patent right is another important intellectual property right in the UK for software developers. They can protect software by using Patent law in the UK, however, the process is not easy. UKIPO and EPO provide software patents to the developers. However, in order to qualify, it is necessary to meet the requirements stated in the patent act. Requirements for software Patents are stated as under:
Physical object-related software such as electric vehicles, industrial machinery, or handheld devices.
Computer-related software such as hardware of the computer, security, handling of data and output.
In the UK, it is hard to get patent rights for the software unless there is a “technical effect” that is embodied in the software.
Social, Economic, Ethical, And Political Contexts Where Intellectual Property Law Is Implemented
Social analysis: For the well-being of society, it is important to follow the rights of intellectual property. An owner who invented a creation has the right to protect intellectual property rights. Other persons need to take permission before using it or copying any functions. Economic analysis: Rights of intellectual property contribute to economic growth. The owner of the intellectual property can make money with the rights of intellectual property. As per copyright law, no one can copy or use the intellectual property that is protected under intellectual property right (Wagner et al. 2019). In order to use it, an individual requires permission from the owners. Hence, owners can sell the rights to use it in exchange for money and it helps in economic growth.
Ethical analysis: Ethics are an important part of any laws and legislation and it includes the moral rights of an individual. The statutory right is moral rights conferred by CDPA 1988 and these include:
“Right of attribution: to be identified as the author of the work when a work is copied or communicated.”
“Right to object to false attribution (being named in respect of a work not created by the author)” (UK Government, 2019)
“The right to control the form of the work (right of integrity/to object to derogatory treatment)”
Integrity is the major focus in ethical analysis and it is infringed if there has work ‘derogatory treatment’.
Political analysis: Most of the political parties in the UK are recognising the threat of misuse of computers. As mentioned by Ghafur et al. (2019), the Misuse Computer Act of 1990 regulates the usage of the Internet and social media. Cyber securities are making the continent less safe; hence, political leaders are focusing on training people about cybercrime. The agency of national crime is strengthened in cyber security and police are trained.
Issues related to socio-legal nature
Copyright can only protect the codes; however, it cannot protect the ideas that are contained. Hence, the idea needs to be fundamentally innovative, rather than the code itself, or if the code is simple or short, it is necessary to be careful about disclosing the source of the code (Ghafur et al. 2019). For example, if a person can understand by looking at the code, what is done in the software and then recreated the same functions from scratch that means the person has not infringed copyright law.
Changes in law to accommodate new and developing technologies
The UK government is trying to change some laws in order to make copyright law more effective for software. AI is introduced in order to create as well as innovate software to stay competitive (GovGrant, 2023). Three major areas are stated:
Protection of copyright for computer-generated works without a human author. (Kinsara, 2021)
Copyright licensing for text and data mining, which is important in the use of AI and its development (Urquhart et al. 2020).
Whether and how AI-devised inventions should be protected by patents.
European and international instruments may impact English law in software intellectual property
TRIPS agreement is one of the major agreements of the World Trade Organisation and a legal agreement between WTO members. Intelligent property right provides various rights such as the right of patent, trademark, copyright, and secret of trades. IP should be unique in order to track cybercrimes; hence, every mobile device and computer has unique IP to track its records if reported. In order to provide protection to software IP should be provided by software owners. Hackers can hack any software and can obtain private information that is stored in that software. However, IP can help to protect data securely in the software. Many software provides users warnings that data is not safe on this site. Hence, users need to use it wisely.
On the other hand, many software shows the terms and conditions that the data will be protected securely and users may use extra protection by using encoded passwords so that no one can access it without permission (Wagner et al. 2019). Without software mobile devices and computers will be of no use, hence, users cannot avoid usage of the software. It provides the opportunity to expand business globally by using software services, hence, professional data is also stored in software. Components of software are categorised into two parts Operating system and Libre/Floss. Proprietary software can be used safely by the users in terms of intellectual property. It is a kind of private property that can be used by an individual or by a company. The data is protected by different laws and regimes of intellectual property. Some software needs licenses in order to use it so that data can be protected securely in the software. Moreover, no hacker can have access to it as they will also need to get a license if they try to use it.
Figure 1: Access to Justice
It is a debated topic how data can be protected by software in terms of legal aspects so that an individual can use it. Windows majorly manages the internal activities of a computer, hence, if Windows is hacked then it is a real threat for the user. Hence, programming code is set for every IP to protect the data of the users. As opined by Saeidi et al. (2019), program code makes it more valuable and is used to resolve various issues. Various regimes are imposed in order to protect the intellectual property of the software. Legal rights are created in order to restrict the usage of the internet and social media and the law of trademark also protects the intellectual property rights of the users. No one can copy the features of the software as per the copyright and an individual needs to take permission if wants to create similar software. The legal case of “Diamond v Diehr (450 US 175 (1981)” upheld a software patent by the court (supreme, 2023).
Research, Analysis, And Evaluation of Primary and Other Source Materials
The rights of IP are infringed when an invention or creation protected by laws is copied or used without the consent of the owner. It is treated as civil infringement if someone is copying a program or code or functionality of others’ software.
Copyright infringement
Copyright is infringed when a person performs any of the restricted acts by copyright without any consent of the right holder. The owner of the copyright has the following rights such as lending and rental, economic rights, performance in public, distribution, transmission electronically including adaptation, and broadcasting (Yeboah-Ofori et al. 2019). Owners also have some moral rights that help to protect non-economic interests. It contains attribution rights, object-to-derogatory treatment rights, and false attribution right.
The right owner can act against the person if an individual violates the laws of copyright. Any proven infringement may lead to disciplinary action and the accused person is responsible for the damage. The accused person receives a copyright infringement notice through email, letter, or phone call.
Related case law
Nova Productions Ltd v. Mazooma Games Ltd (2007): This case addressed the issue of substantial copying in software copyright. The court ruled that substantial copying can occur even if there is no line-by-line or literal copying of code. In this case, the defendant had created a software game that was like the claimant's game, and the court found that the overall structure, sequence, and organization of the software were substantially similar.
CPDA 1988 established an independent tribunal called the Copyright Tribunal. The key role of this tribunal is to adjudicate disputes between copyright owners and collecting societies. However, it does not work on cases related to copyright infringement. Trading standard authorities mainly deal with IP investigations related to copyright. The economic right of the copyright holder is protected by the UK under common law. Copyright is the right that applies automatically from the time of creation without registration.
Recommendations
It is important to follow intellectual property rights while using software in order to protect data. It helps to use the internet and social media in an effective manner. There are many users who are following the correct standards in order to stay protected with cyber security (Yeboah-Ofori et al. 2021). Here are some pieces of advice that can help users to use software safely:
Discoveries documenting: Users discover various things while using software, if the discoveries are well documented then it is possible to track malicious activities from the beginning (Alahmari and Duncan, 2022). It can be reported to software developers and they can check it accordingly to protect the user's data. As a result, users can use it without any hesitation once they get a green signal from the software developers.
Managing digital rights: Digital rights and legislation are made in order to protect someone's personal data. Hence, it is important to follow laws and regimes related to digital rights. One should use software for good purposes and get a license whenever required in order to protect one's own data. Moreover, one should always read the terms and conditions before using the software. If there is any risk associated then the user should avoid using such kind of software and report it immediately.
Nondisclosure information: An individual should not disclose any information that is confidential in nature. Then the individual can be prosecuted for breach of intellectual property rights. It may happen due to work purposes software developers may have access to user's data, however, they should maintain the confidentiality of that information (Parn and Edwards, 2019) Once user data is safe and secure, they can use it securely and can take a sigh of relief. One should not copy someone else's thoughts otherwise it can lead to a punishable offence under the copyright act. It is important to get permission before creating similar software.
Using strong credentials to protect data: It is observed that while using software or the internet, many sites ask to create strong passwords so that no one can access them without consent. Hence, it is important for users to use strong credentials in order to protect data. Using the same password for multiple websites can be risky, if anyone can have access to one site, they can access all the sites in order to retrieve information (Maglaras et al. 2019). It is advised to use different passwords for different websites and use a strong password with uppercase, lowercase, and symbols.
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Conclusion
The above essay confirms that intellectual property means something that is created or invented by someone and it is unique in nature. Rights related to intellectual property help to protect software from copying or stealing. Copyright is provided automatically when software is created in order to protect its nature, function, and operation. It also helps in making money for the owner from the intellectual property. It is difficult to meet all the criteria for the right of patent, however, copyright is quite an easier way to get protection for the software. Copyright protects software and prevents it from unauthorised usage under CPDA 1988. It helps to protect computer programs of a computer, databases, and design materials.
The above essay shows the application of Civil and Criminal law in protecting the intellectual property of software with related case laws. Current situations and issues are also highlighted in terms of copyright. Social, economic, ethical as well as political analysis is done in the context of intellectual property. Issues related to socio-logical nature are discussed critically in the above section. It is found that various changes are made to the law with new and developing technologies. How European and international instruments impact English law in the context of software intellectual property is also highlighted. Research, analysis, and evaluation are done on Copyright infringement in order to understand it better with relevant case law. Recommendations are made for the audience so that everyone can use them wisely. Thus, it can be concluded that intellectual property rights are imposed by the UK government and it helps to accuse another person who violates the laws and legislation of copyright act.
References
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Bently, L., Sherman, B., Gangjee, D. and Johnson, P., (2022). Intellectual property law. Oxford University Press.
Ghafur, S., Grass, E., Jennings, N.R. and Darzi, A., (2019). The challenges of cybersecurity in health care: the UK National Health Service as a case study. The Lancet Digital Health, 1(1), pp.e10-e12.
Gov.uk, (2023). IP crime and enforcement for businesses. Available at: Available at: https://www.gov.uk/government/publications/ip-crime-and-enforcement-for-businesses/ip-crime-and-enforcement-for- [Accessed on 17th May 2023]businesses#:~:text=IP%20crime%20and%20infringement.,those%20rights%20or%20their%20representative
GovGrant, (2023), Can you patent software in the UK? Available at: <https://www.govgrant.co.uk/knowledge-hub/can-you-patent-software-in-the-uk/#:~:text=You%20can%20indeed%20get%20a,meet%20in%20order%20to%20qualify.? [Accessed on 17th May 2023]
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Kinsara, O.A., (2021). Clash of Dilemmas: How Should UK Copyright Law Approach the Advent of Autonomous AI Creations?. Cambridge L. Rev., 6, p.62.
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