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Software copyright is the application of
copyright Copyright is a type of intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. ...

copyright
in
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its bounda ...
to machine-readable
software Software is a collection of instructions Instruction or instructions may refer to: Computing * Instruction, one operation of a processor within a computer architecture instruction set * Computer program, a collection of instructions Music * I ...

software
. While many of the legal principles and policy debates a 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 Software is a collection of instructions Instruction or instructions may refer to: Computing * Instruction, one operation of a processor within a computer architecture instruction set * Computer program, a collection of instructions Music * I ...

software
. Software copyright is used by
software developers A computer programmer, sometimes called a software developer, a programmer or more recently a coder (especially in more informal contexts), is a person who creates computer software. The term ''computer programmer'' can refer to a specialist in ...
and
proprietary software Proprietary software, also known as non-free software or closed-source software, is computer software for which the software's publisher or another person reserves some rights from licenses to use, modify, share modifications, or share the softwa ...
companies to prevent the unauthorized copying of their software.
Free Free may refer to: Concept * Freedom, having the ability to act or change without constraint * Emancipate, to procure political rights, as for a disenfranchised group * Free will, control exercised by rational agents over their actions and decis ...
and
open source license An open-source license is a type of license A license (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is the set of variety (linguistics), varieties of the Eng ...
s also rely on copyright law to enforce their terms. For instance,
copyleft Copyleft is the practice of granting the right to freely distribute and modify intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things ...

copyleft
licenses impose a duty on
licensees A licensee can mean the holder of a license or, in U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the l ...
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 consists of all the creative work A creative work is a manifestation of creativity, creative effort including Work of art, fine artwork (sculpture, paintings, drawing, Sketch (drawing), sketching, performance art), dance, wr ...

public domain
.


National and supranational laws


Canada

In
Canada Canada is a country in the northern part of North America North America is a continent A continent is any of several large landmasses. Generally identified by convention (norm), convention rather than any strict criteria, ...

Canada
, software is protected as a
literary work Literature broadly is any collection of Writing, written work, but it is also used more narrowly for writings specifically considered to be an art form, especially prose fiction, drama, and poetry. In recent centuries, the definition has expan ...
under the
Copyright Act of Canada The ''Copyright Act'' of Canada is the federal statute governing copyright law in Canada The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada Canada is a country in the ...
. Copyright is acquired automatically when an
original work Originality is the aspect of created or invented works as being new or novel, and thus replica, reproductions, clones, forgery, forgeries, or derivative works. An original work is one not received from others nor one copied from or based upon th ...
is generated; the creator is not required to register or mark the work with the
copyright symbol The copyright symbol, or copyright sign, (a circled capital letter C for copyright Copyright is a type of intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives peopl ...

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 right In Anglo-Saxon law Anglo-Saxon law (Old English Old English (, ), or Anglo-Saxon, is the earliest recorded form of the English language English is a West Germanic l ...

Fair Dealing
; 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 information to increase understanding of a topic or issue. A research project may be an expa ...

research
, private study,
education Education is the process of facilitating learning, or the acquisition of knowledge, skills, value (ethics), values, morals, beliefs, habits, and personal development. Educational methods include teaching, training, storytelling, discussion ...

education
,
parody A parody, also called a spoof, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or make fun of its subject by means of satire, satiric or irony, ironic imitation. Ofte ...
or
satire Satire is a of the , , and s, usually in the form of and less frequently , in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of shaming or exposing the perceived flaws of individuals, corpora ...
. 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 the application of which one attempts to understand through deductive reasoning Deductive reasoning, also deductive logic, is the process ...

reverse engineering
and
security testing Security testing is a process intended to reveal flaws in the security Security is freedom from, or resilience against, potential Potential generally refers to a currently unrealized ability. The term is used in a wide variety of fields, from ...
.


China


East Germany

A 1979
East German East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a state that existed from 1949 to 1990 in New states of Germany, eastern Germany as part of the Eastern Bloc in the Cold War. C ...
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 (Hindi Hindi (Devanagari: , हिंदी, ISO 15919, ISO: ), or more precisely Modern Standard Hindi (Devanagari: , ISO 15919, ISO: ), is an Indo-Aryan language spoken chiefly in Hindi Belt, ...

India
. Copyright in software, in the absence of any agreement to the contrary, vests in the
author An author is the creator or originator of any written work such as a book A book is a medium for recording information Information is processed, organised and structured data Data (; ) are individual facts, statistics, or item ...

author
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 (; ''Dillī''; ''Dillī''; ''Dêhlī''), officially the National Capital Territory (NCT) of Delhi, is a city and a of containing , the capital of India. * * * Straddling the river, but primarily its western or right bank, Delhi ...

Delhi
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 A master service agreement, sometimes known as a framework agreement, is a contract reached between parties, in which the parties agree to most of the terms that will govern future transactions or future agreements. A master agreement delineates ...
), 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 broadly is any collection of written Writing is a medium of human communication Communication (from Latin ''communicare'', meaning "to share") is the act of developing Semantics, meaning among Subject (philosophy), entities ...

literary
, musical, or
artistic Art is a diverse range of (products of) human activities Humans (''Homo sapiens'') are the most populous and widespread species of primates, characterized by bipedality, opposable thumbs, hairlessness, and intelligence allowing the use ...

artistic
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 In imperative programming, a computer program is a sequence of instructions in a programming language that a computer can execute or interpret. In declarative programming, a ''computer program'' is a Set (mathematics), set of instructions. A comp ...
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 Rupee is the common name for the currency, currencies of Indian rupee, India, Indonesian rupiah, Indonesia, the Maldivian rufiyaa, Maldives, Mauritian rupee, Mauritius, Nepalese rupee, Nepal, Pakistani rupee, Pakistan, Seychellois rupee, Seychel ...

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 temporary use of a good, service or property owned by another. A gross lease is when the Tenement (law), tenant pays a flat rental amount and the landl ...
computer software without permission of the owner. According to a study of
Business Software Alliance The current BSA logo. The Software Alliance, also known as BSA, is a trade group established by Microsoft in 1988 to represent commercial software makers. It is a member of the International Intellectual Property Alliance. Its principal activity is ...
, 84% of software in Pakistan is being used in violation of the Copyright law of Pakistan.


United States

Copyright protection attaches to “
original works Originality is the aspect of created or invented works as being new or novel, and thus replica, reproductions, clones, forgery, forgeries, or derivative works. An original work is one not received from others nor one copied from or based upon the ...
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: *
literary Literature broadly is any collection of written Writing is a medium of human communication Communication (from Latin ''communicare'', meaning "to share") is the act of developing Semantics, meaning among Subject (philosophy), entities ...

literary
works *
musical Musical is the adjective of music Music is the of arranging s in time through the of melody, harmony, rhythm, and timbre. It is one of the aspects of all human societies. General include common elements such as (which governs and ), ...

musical
works (& accompanying words) *
dramatic
dramatic
works (& accompanying music) *
pantomimes Pantomime (; informally panto) is a type of musical theatre, musical comedy stage production designed for family entertainment. It was developed in England and is performed throughout the United Kingdom, Ireland and (to a lesser extent) in other ...

pantomimes
and choreographed works *
pictorial An SAR radar imaging, radar image acquired by the SIR-C/X-SAR radar on board the Space Shuttle Endeavour shows the Teide volcano. The city of Santa Cruz de Tenerife is visible as the purple and white area on the lower right edge of the island ...
, graphic, &
sculptural ''lamassu 300px, ''Lamassu'' from Dur-Sharrukin. University of Chicago Oriental Institute. Syrian limestone Neo-Assyrian Period, c. 721–705 BCE ''Lama'', ''Lamma'' or ''Lamassu'' (Cuneiform: , ; Sumerian language, Sumerian: lammař; late ...

sculptural
works *
motion pictures A film, also called a movie, motion picture or moving picture, is a work of visual art used to simulate experiences that communicate ideas, stories, perceptions, feelings, beauty, or atmosphere through the use of moving images. These imag ...
& other
audiovisual Audiovisual (AV) is electronic media Electronic media are media Media may refer to: Physical means Communication * Media (communication), tools used to deliver information or data ** Advertising media, various media, content, buy ...

audiovisual
works *
sound recordings Sound recording and reproduction is an electrical Electricity is the set of physical phenomena associated with the presence and motion Image:Leaving Yongsan Station.jpg, 300px, Motion involves a change in position In physics, motion ...
*
architectural Architecture (Latin ''architectura ''Architectura: Zeitschrift für Geschichte der Baukunst'' is a biannual peer-reviewed Peer review is the evaluation of work by one or more people with similar competencies as the producers of the wo ...

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, .Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)
/ref> There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for
computer programs In imperative programming, a computer program is a sequence of instructions in a programming language that a computer can execute or interpret. In declarative programming, a ''computer program'' is a Set (mathematics), set of instructions. A comp ...
prohibits not only literal copying, but also copying of "nonliteral elements", such as program's
structure, sequence and organization Structure, sequence and organization (SSO) is a term used in the United States to define a basis for comparing one software work to another in order to determine if copying has occurred that infringes on copyright, even when the second work is not a ...
. 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 The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals The United States courts of appeals or circuit courts are the intermediate appellate courts of the Un ...
proposed the
Abstraction-Filtration-Comparison test The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have b ...
for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely
utilitarian Utilitarianism is a family of normative Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good or desirable or permissible and others as ba ...
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.
CircuitsCircuit may refer to: Science and technology Electrical engineering * Electrical circuit, a complete electrical network with a closed-loop giving a return path for current ** Analog circuit, uses continuous signal levels ** Balanced circuit, p ...
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 In United States patent law Under Law of the United States, United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is novelty (patent), new, utility ( ...

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 Random-access memory (RAM; ) is a form of computer memory In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic proces ...
are “fixed” for the purposes of copyright law. The
Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a federal court of appeals that has appellate jurisdiction Appellate jurisdiction is the power of an appellate court to review, amend and overrule decis ...
has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.” In ''
Apple v. Microsoft ''Apple Computer, Inc. v. Microsoft Corporation'', 35 F.3d 1435 ( 9th Cir. 1995), was a copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright Copyright is a type of inte ...
'', the courts established that a
look and feel In software design Software design is the process by which an Agency (philosophy), agent creates a specification of a Artifact (software development), software artifact intended to accomplish goals, using a set of primitive components and sub ...

look and feel
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,
computer programs In imperative programming, a computer program is a sequence of instructions in a programming language that a computer can execute or interpret. In declarative programming, a ''computer program'' is a Set (mathematics), set of instructions. A comp ...
were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object:
object code In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic processes and development of both computer hardware , hardware and sof ...
was viewed as a utilitarian good produced from
source code In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic processes and development of both computer hardware , hardware and ...

source code
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 Creative work, 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, 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 agreements are often labeled as end-user license agreements (EULAs). Another impact of the decision was the rise of the Shrink wrap contract, shrink-wrap closed source business model, where before a
source code In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic processes and development of both computer hardware , hardware and ...

source code
driven software distribution schema dominated. In 1998, The United States Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (Digital Millennium Copyright Act#Anti-circumvention exemptions, 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 Digital Millennium Copyright Act, DMCA 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 software license agreements. 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 End-user license agreement, 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 Court of Justice 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 doctrine, first sale as ownership is transferred, and questions therefore the "licensed, not sold" End-user license agreement, EULAs in the EU.


Fair use

Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act of 1976. This section describes some of the uses of copyrighted software that courts have held to be fair. In ''Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., Galoob v. Nintendo'', the 9th Circuit held that modification of copyright software for personal use was fair. In ''Sega v. Accolade'', the 9th Circuit held that making copies in the course of
reverse engineering Reverse engineering (also known as backwards engineering or back engineering) is a process or method through the application of which one attempts to understand through deductive reasoning Deductive reasoning, also deductive logic, is the process ...

reverse engineering
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 of the United States, Supreme Court ruled in ''Google LLC v. Oracle America, Inc.'' (2021) that the reuse of application programming interfaces (APIs) including representative
source code In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic processes and development of both computer hardware , hardware and ...

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


Copyleft

A
copyleft Copyleft is the practice of granting the right to freely distribute and modify intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things ...

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.


See also

* Copyright infringement of software * Free software licence, Free software license * End-user license agreement, Software license agreement * Software patent * Copyright on typefaces


References

{{DEFAULTSORT:Software Copyright Copyright law Software law