Software copyright is the application of

copyright A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

to machine-readable

software Software consists of computer programs that instruct the Execution (computing), execution of a computer. Software also includes design documents and specifications. The history of software is closely tied to the development of digital comput ...

. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to

. Software copyright is used by software developers and

proprietary software Proprietary software is computer software, software that grants its creator, publisher, or other rightsholder or rightsholder partner a legal monopoly by modern copyright and intellectual property law to exclude the recipient from freely sharing t ...

companies to prevent the unauthorized copying of their software. Free and open source licenses also rely on copyright law to enforce their terms. For instance,

copyleft Copyleft is the legal technique of granting certain freedoms over copies of copyrighted works with the requirement that the same rights be preserved in derivative works. In this sense, ''freedoms'' refers to the use of the work for any purpose, ...

licenses impose a duty on licensees to share their modifications to the work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in the

public domain The public domain (PD) consists of all the creative work to which no Exclusive exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly Waiver, waived, or may be inapplicable. Because no one holds ...

National and supranational laws

Canada

Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...

, software is protected as a

literary work Literary work is a generic term for works of literature, i.e. texts such as fiction and non-fiction books, essays, screenplays''.'' In the philosophy of art and the field of aesthetics there is some debate about what that means, precisely. What a ...

under the

Copyright Act of Canada The ''Copyright Act'' () is the federal statute governing copyright law in Canada. It is jointly administered by the Department of Industry Canada and the Department of Canadian Heritage. The ''Copyright Act'' was first passed in 1921 and substan ...

. Copyright is acquired automatically when an

original work Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...

is generated; the creator is not required to register or mark the work with the copyright symbol in order to be protected. The rights holder is granted: the exclusiv
right of reproduction
the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of

Fair Dealing Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an e ...

; these exempt users from copyright liability covering usage and reproduction when performed for

research Research is creative and systematic work undertaken to increase the stock of knowledge. It involves the collection, organization, and analysis of evidence to increase understanding of a topic, characterized by a particular attentiveness to ...

, private study,

education Education is the transmission of knowledge and skills and the development of character traits. Formal education occurs within a structured institutional framework, such as public schools, following a curriculum. Non-formal education als ...

parody A parody is a creative work designed to imitate, comment on, and/or mock its subject by means of satire, satirical or irony, ironic imitation. Often its subject is an Originality, original work or some aspect of it (theme/content, author, style, e ...

satire Satire is a genre of the visual, literary, and performing arts, usually in the form of fiction and less frequently non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of exposin ...

. Changes to the Copyright Act in regard to digital copyright were debated in the Canadian Parliament in 2008. Bill C-61 proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups,

reverse engineering Reverse engineering (also known as backwards engineering or back engineering) is a process or method through which one attempts to understand through deductive reasoning how a previously made device, process, system, or piece of software accompl ...

and

security testing Security testing is a process intended to detect flaws in the security mechanisms of an information system and as such help enable it to protect data and maintain functionality as intended. Due to the logical limitations of security testing, pass ...

China

East Germany

A 1979 East German court ruling found that software was "neither a scientific work nor a creative achievement" and ineligible for copyright protection, legalizing software copying in the country.

European Union

India

Software can be copyrighted in

India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...

. Copyright in software, in the absence of any agreement to the contrary, vests in the

author In legal discourse, an author is the creator of an original work that has been published, whether that work exists in written, graphic, visual, or recorded form. The act of creating such a work is referred to as authorship. Therefore, a sculpt ...

of the software, even for commissioned works. Copyright can be assigned or licensed through a written document, but under the Indian Copyright Act, in case the period of assignment is not specified, the period is deemed to be 5 years from the date of assignment (section 19(5) of the Copyright Act). In a recent judgement in the case of Pine Labs Private Limited v. Gemalto Terminals India Private Limited the

Delhi Delhi, officially the National Capital Territory (NCT) of Delhi, is a city and a union territory of India containing New Delhi, the capital of India. Straddling the Yamuna river, but spread chiefly to the west, or beyond its Bank (geography ...

High Court has laid down that the copyright belongs to the author (in this case, Pine Labs) and as the period of assignment was not specified in the document of assignment (the master service agreement), the copyright in the software reverted to Pine Labs after 5 years. See Assignment of Copyright in Software.

Pakistan

Under the provision of Copyright Ordinance 1962, works which fall into any of the following categories:

literary Literature is any collection of written work, but it is also used more narrowly for writings specifically considered to be an art form, especially novels, plays, and poems. It includes both print and digital writing. In recent centuries, ...

, musical, or

artistic Art is a diverse range of culture, cultural activity centered around works of art, ''works'' utilizing Creativity, creative or imagination, imaginative talents, which are expected to evoke a worthwhile experience, generally through an express ...

are protected by Copyright law. The definition of literary work was amended by Copyright Amendment 1992 to include computer software. Section 2(p) of the ordinance defines a

computer program A computer program is a sequence or set of instructions in a programming language for a computer to Execution (computing), execute. It is one component of software, which also includes software documentation, documentation and other intangibl ...

as "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information". In event of infringement, civil and/or criminal proceedings can be carried out. According to Chapter XIV of Copyright Ordinance, a person can face a prison of up to 3 years and/or a penalty of up to one hundred thousand rupees if he is found guilty of

renting Renting, also known as hiring or letting, is an agreement where a payment is made for the use of a good, service or property owned by another over a fixed period of time. To maintain such an agreement, a rental agreement (or lease) is sig ...

computer software without permission of the owner. According to a study of Business Software Alliance, 84% of software in Pakistan is being used in violation of the Copyright law of Pakistan.

United States

Copyright protection attaches to “ original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others. Copyright protects: *

works *

musical Musical is the adjective of music. Musical may also refer to: * Musical theatre, a performance art that combines songs, spoken dialogue, acting and dance * Musical film Musical film is a film genre in which songs by the Character (arts), charac ...

works (& accompanying words) * dramatic works (& accompanying music) * pantomimes and choreographed works * pictorial, graphic, & sculptural works * motion pictures & other

audiovisual Audiovisual (AV) is electronic media possessing both a sound and a visual component, such as slide-tape presentations, films, television programs, corporate conferencing, church services, and live theater productions. Audiovisual service provide ...

works *

sound recordings Sound recording and reproduction is the electrical, Mechanical system, mechanical, electronic, or digital inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of ...

* architectural works + compilations and derivative works 17 USC § 103(a). In the United States, computer programs are literary works, under the definition in the Copyright Act: The legal definition of "literary work" extends beyond the common-sense meaning of the term (

literature Literature is any collection of Writing, written work, but it is also used more narrowly for writings specifically considered to be an art form, especially novels, Play (theatre), plays, and poetry, poems. It includes both print and Electroni ...

such as '' For Whom the Bell Tolls'') and includes any work expressed as a sequence of words, numbers, or symbols, particularly the source or

object code In computing, object code or object module is the product of an assembler or compiler In computing, a compiler is a computer program that Translator (computing), translates computer code written in one programming language (the ''source'' ...

of computer programs. There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for

computer programs A computer program is a sequence or set of instructions in a programming language for a computer to Execution (computing), execute. It is one component of software, which also includes software documentation, documentation and other intangibl ...

prohibits not only literal copying, but also copying of "nonliteral elements", such as program's structure, sequence and organization. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves."Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) In '' Computer Associates vs Altai'', the Second Circuit proposed the Abstraction-Filtration-Comparison test for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely

utilitarian In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for the affected individuals. In other words, utilitarian ideas encourage actions that lead to the ...

and the public domain. Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101. Circuits differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982) The set of operations available through the interface is not copyrightable in the United States under '' Lotus v. Borland'', but it can be protected with a utility patent. The law is unclear as to whether transient copies such as those cached when transmitting digital content, or temporary copies in a computer's RAM are “fixed” for the purposes of copyright law. The Ninth Circuit has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.” In '' Apple v. Microsoft'', the courts established that a

look and feel In software design, the look and feel of a graphical user interface comprises aspects of its design, including elements such as colors, shapes, layout, and typefaces (the "look"), as well as the behavior of dynamic elements such as buttons, boxes ...

copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.

History

Historically,

were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object:

was viewed as a utilitarian good produced from

source code In computing, source code, or simply code or source, is a plain text computer program written in a programming language. A programmer writes the human readable source code to control the behavior of a computer. Since a computer, at base, only ...

rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code.Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34 This analogy caused the Copyright Office to issue copyright certificates under its Rule of Doubt. In 1974, the Commission on New Technological Uses of Copyrighted Works ( CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's original creation, are proper subject matter of copyright."Apple Computer, Inc. v. Franklin Computer Corporation Puts the Byte Back into Copyright Protection for Computer Programs
in Golden Gate University Law Review Volume 14, Issue 2, Article 3 by Jan L. Nussbaum (January 1984) In 1980, the United States Congress added the definition of "computer program" to and amended to allow the owner of the program to make another copy or adaptation for use on a computer.Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 35 This

legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred ...

, plus court decisions such as '' Apple v. Franklin'' in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via the doctrine of first sale (see '' Step-Saver Data Systems, Inc. v. Wyse Technology''). These

software license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or End user, end-user. The practice of selling licenses to rather than copies of software predates the recognition of software copyright, w ...

s are often labeled as end-user license agreements ( EULAs). Another impact of the decision was the rise of the shrink-wrap

closed source Proprietary software is software that grants its creator, publisher, or other rightsholder or rightsholder partner a legal monopoly by modern copyright and intellectual property law to exclude the recipient from freely sharing the software or modi ...

business model, where before a

driven software distribution schema dominated. In 1998, The United States Congress passed the

Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...

(DMCA) which criminalizes evasion of copy protection ( with certain exceptions), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. In addition, the

DMCA The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...

extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."

EULAs and rights of end users

The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes. Furthermore, "owners of copies" have the right to resell their copies, under the first sale doctrine and . These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping . American courts have taken varying approaches when confronted with these

s. In '' MAI Systems Corp. v. Peak Computer, Inc.'', '' Triad Systems Corp. v. Southeastern Express Co.'', and ''Microsoft v Harmony'',Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994) various Federal courts held that "licensed, not sold" language in an EULA was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).
/ref> The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft Corp. v. DAK Industries, Inc.Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995) By contrast, in the

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...

the

European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...

held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on first sale as ownership is transferred, and questions therefore the "licensed, not sold" EULAs in the EU.

Fair use

Fair use Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...

is a defense to an allegation of

copyright infringement Copyright infringement (at times referred to as piracy) is the use of Copyright#Scope, works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the c ...

under section 107 of the

Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, ...

. This section describes some of the uses of copyrighted software that courts have held to be fair. In '' Galoob v. Nintendo'', the 9th Circuit held that modification of copyrighted software for personal use was fair. In '' Sega v. Accolade'', the 9th Circuit held that making copies in the course of

is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access". The

Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...

ruled in '' Google LLC v. Oracle America, Inc.'' (2021) that the reuse of

application programming interfaces An application programming interface (API) is a connection between computers or between computer programs. It is a type of software interface, offering a service to other pieces of software. A document or standard that describes how to build su ...

(APIs) including representative

can be transformative and fall within fair use, though did not rule if such APIs are copyrightable.

Copyleft

is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.

International laws

Berne Convention and WIPO Copyright treaty

Computer programs and other types of software, including mobile apps, are protected as literary works for copyright purposes. Copyright protection is formality-free in countries party to the Berne Convention, which means that protection does not depend on compliance with any formalities such as registration or deposit of copies. This inclusion of software in the wording of article 2 of Berne Convention is supported by the WIPO Copyright Treaty: A patent is generally granted after completing an examination procedure by a government agency. Copyright protection of computer software is established in most countries and harmonized by international treaties to that effect.