Copyright in Cyberspace

2020 ◽  
pp. 191-218
Author(s):  
Mireille Hildebrandt
Keyword(s):  
Open Source ◽  
Copyright Protection ◽  
Computer Programs ◽  
Copyright Law ◽  
Free Access ◽  
Constitutional Democracy ◽  
Computer Scientists ◽  
Software Copyright ◽  
Eu Copyright Law ◽  
Ip Law

This chapter is an introduction to the domain of intellectual property (IP) rights, notably copyright. For computer scientists, the most relevant part of copyright law concerns copyright on computer programs, or software. Copyright on software is the enabling precondition for the General Public Licence (GPL) and the open source initiative. Before discussing copyright on software, however, this chapter first investigates the position of IP law in the context of constitutional democracy and clarifies that IP law is private law. From there, the chapter provides an overview of the various types of IP that are most relevant, after which it turns to the history, objectives, and scope of copyright protection. Finally, this chapter discusses EU copyright law and the issues of open source and free access.

scholarly journals Convergence in the Law of Software Copyright?

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Copyright Protection ◽  
Computer Software ◽  
Good Deal ◽  
Computer Programs ◽  
Copyright Law ◽  
Fair Use ◽  
Unified Approach ◽  
Software Copyright ◽  
The Law

Virtually all the courts to consider non-literal infringement of softwarecopyrights have lined up with the “narrow constructionists,” engaging in“analytic dissection” of computer programs in order to determine whetherany copyrightable expression has actually been copied. Most commonly, thisanalytic dissection has taken the form of the“abstraction-filtration-comparison” test set forth in Computer Associatesv. Altai. While there are still a few courts in which the “total conceptand feel” approach remains the law, the approach is moribund: since Altaiwas decided, no court has endorsed the broader “total concept and feel”approach.Rather than ending, the debate over software copyright law appears to beshifting its focus. Having finally resolved the debate that has beenplaguing software copyright law since its inception, courts are discoveringto their chagrin, that deciding what test to apply actually tells you verylittle about how to apply that test. Despite the convergence of courts onAltai's filtration approach, courts remain fundamentally conflicted indeciding how broadly to protect software copyright. Further, there remainsa good deal of misunderstanding about what exactly it means to “abstract”and “filter” a computer program.I suggest a unified approach to evaluating non-literal infringement insoftware copyright cases. This approach focuses on exactly what is allegedto have been copied. It also acknowledges the increasing role of patent lawin protecting computer software, and the role of other copyright concernssuch as compatibility and fair use. The result of this unified approach isto provide relatively narrow copyright protection for computer programs inmost cases of non-literal infringement.

Legal and Economic Justifi cation for Software Protection

2011 ◽  
pp. 328-339
Author(s):  
Bruno de Vuyst
Keyword(s):  
Reverse Engineering ◽  
Open Source ◽  
Open Source Software ◽  
Copyright Protection ◽  
Patent Protection ◽  
Computer Programs ◽  
Property Law ◽  
Software Protection ◽  
National Patent ◽  
The U.S

This chapter discusses legal and economic rationale in regards to open source software protection. Software programs are, under TRIPS1, protected by copyright (reference is made to the Berne Convention2). The issue with this protection is that, due to the dichotomy idea/expression that is typical for copyright protection, reverse engineering of software is not excluded, and copyright is hence found to be an insufficient protection. Hence, in the U.S., software makers have increasingly turned to patent protection. In Europe, there is an exclusion of computer programs in Article 52 (2) c) EPC (EPO, 1973), but this exclusion is increasingly narrowed and some call for abandoning the exclusion altogether. A proposal by the European Commission, made in 2002, called for a directive to allow national patent authorities to patent software in a broader way, so as to ensure further against reverse engineering; this proposal, however, was shelved in 2005 over active opposition within and outside the European parliament. In summary, open source software does not fit in any proprietary model; rather, it creates a freedom to operate. Ultimately, there is a need to rethink approaches to property law so as to allow for viable software packaging in both models.

Legal and Economic Justification for Software Protection

2009 ◽  
pp. 2831-2842
Author(s):  
Bruno de Vuyst ◽  
Alea Fairchild
Keyword(s):  
Reverse Engineering ◽  
Open Source ◽  
Open Source Software ◽  
Copyright Protection ◽  
Patent Protection ◽  
Computer Programs ◽  
Property Law ◽  
Software Protection ◽  
National Patent ◽  
The U.S

This chapter discusses legal and economic rationale in regards to open source software protection. Software programs are, under TRIPS1, protected by copyright (reference is made to the Berne Convention2). The issue with this protection is that, due to the dichotomy idea/expression that is typical for copyright protection, reverse engineering of software is not excluded, and copyright is hence found to be an insufficient protection. Hence, in the U.S., software makers have increasingly turned to patent protection. In Europe, there is an exclusion of computer programs in Article 52 (2) c) EPC (EPO, 1973), but this exclusion is increasingly narrowed and some call for abandoning the exclusion altogether. A proposal by the European Commission, made in 2002, called for a directive to allow national patent authorities to patent software in a broader way, so as to ensure further against reverse engineering; this proposal, however, was shelved in 2005 over active opposition within and outside the European parliament. In summary, open source software does not fit in any proprietary model; rather, it creates a freedom to operate. Ultimately, there is a need to rethink approaches to property law so as to allow for viable software packaging in both models.

Copyright Protection for Software 2.0?

2021 ◽  
pp. 323-340
Author(s):  
Hao-Yun Chen
Keyword(s):  
Neural Network ◽  
Neural Networks ◽  
Network Structure ◽  
Copyright Protection ◽  
Computer Programs ◽  
Copyright Law ◽  
Data Sets ◽  
Copyright Laws ◽  
Neural Network Structure ◽  
Over Time

Traditionally, software programmers write a series of hard-coded rules to instruct a machine, step by step. However, with the ubiquity of neural networks, instead of giving specific instructions, programmers can write a skeleton of code to build a neural network structure, and then feed the machine with data sets, in order to have the machine write code by itself. Software containing the code written in this manner changes and evolves over time as new data sets are input and processed. This characteristic distinguishes it markedly from traditional software, and is partly the reason why it is referred to as ‘software 2.0’. Yet the vagueness of the scope of such software might make it ineligible for protection by copyright law. To properly understand and address this issue, this chapter will first review the current scope of computer program protection under copyright laws, and point out the potential inherent issues arising from the application of copyright law to software 2.0. After identifying related copyright law issues, this chapter will then examine the possible justification for protecting computer programs in the context of software 2.0, aiming to explore whether new exclusivity should be granted or not under copyright law, and if not, what alternatives are available to provide protection for the investment in the creation and maintenance of software 2.0.

Machine Learning Models Under the Copyright Microscope: Is EU Copyright Fit for Purpose?

2021 ◽  
Author(s):  
BegoÑa Gonzalez Otero
Keyword(s):  
Machine Learning ◽  
Intellectual Property ◽  
Open Source Software ◽  
Computer Programs ◽  
Copyright Law ◽  
The Core ◽  
Eu Copyright Law ◽  
Core Components ◽  
Fit For Purpose ◽  
Software Licensing

Abstract This paper is based on a presentation given in December 2019 at the Lund’s University conference ‘Artificial Intelligence (AI), Data Protection and Intellectual Property in a European context’. The purpose of this article is to analyse the suitability of the copyright system over Machine Learning (ML) models, the so-called ‘core components’ of ML systems. Computer programs protection has always caused certain difficulties for intellectual property law. Internationally, agreement was reached in the 1970s to protect computer programs as literary works of copyright. ML models have been called ‘learning algorithms’, ‘AI computer programs’, and ‘software 2.0’. Yet there is no unanimity about what they are technically. This is relevant from a copyright perspective, because the regime of protection granted by copyright will be different depending on whether the ML model qualifies as a computer program, as a mathematical method, or as another type of work. Additionally, all proprietary and open source software licensing relies on copyright protection. In most open licenses, the license is not triggered if it is applied to something that is not protected by copyright (or related rights). Thus, it seems pertinent to question whether EU copyright law provides adequate protection for the core components of machine learning systems, the ML models.

2. Copyright I

2017 ◽  
Author(s):  
Tanya Aplin ◽  
Jennifer Davis
Keyword(s):  
Copyright Protection ◽  
Computer Programs ◽  
Copyright Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. Copyright refers to a set of exclusive rights in relation to cultural works such as literature, newspapers, photographs, drawings, artworks, films, music, and plays, and also extends to less obviously aesthetic creations, such as computer programs and databases. This chapter discusses the history, justifications, and sources of UK copyright law as well as the requirements for copyright protection.

Protection of and Access to Data under European Law

2021 ◽  
pp. 383-400
Author(s):  
Matthias Leistner
Keyword(s):  
Copyright Protection ◽  
Data Exchange ◽  
Data Access ◽  
Computer Programs ◽  
European Law ◽  
Public Sector Information ◽  
Access Problems ◽  
Eu Copyright Law ◽  
Access Rights ◽  
Access To Data

This chapter focuses on (1) keeping data exchange infrastructures freely accessible and (2) accommodating different existing or proposed access regimes with EU copyright law, in particular with sui generis protection of databases. Accordingly, the chapter mainly focuses on access issues rather than protection. Academic contributions with regard to the latter and also on necessary limitations to protection exist in abundance. By contrast, there is comparatively little literature on the different, recently proposed sector-specific access regimes and the consistent accommodation of such future access regimes with existing IP-protection. This even concerns sectors where overlap and possible contradictions are already imminent, such as the relation of EU sui generis protection for databases with the co-existing EU regime on access to public sector information. The chapter will focus on three aspects of the recent access discussion. First, free accessibility and availability of the infrastructural framework for data access, exchange, and trade in data will be discussed. Secondly, existing copyright protection of computer programs and compilations will be analysed to further identify specific access problems and hold-up potential. Thirdly, the chapter deals with EU sui generis protection for databases which, in this author’s view, is in need of imminent reform. This section also focuses on different areas and case groups, where access rights already exist or are discussed, and will categorize these access rights from an IP perspective as a sound basis for making specific reform proposals on the contextual accommodation of such future access rights with sui generis protection for databases.

scholarly journals Copyright protection for computer programs

2021 ◽  
pp. 5-14
Author(s):  
Konstiantyn Zerov
Keyword(s):  
Computer Program ◽  
Copyright Protection ◽  
Legal Protection ◽  
Computer Programs ◽  
Copyright Law ◽  
Copyright Holder ◽  
Source Codes ◽  
Object A ◽  
The Public ◽  
The Right

Zerov K. Copyright protection for computer programs. The article discusses the main approaches to the legal protection of software, particularly computer programs, in accordance with the current legislation of Ukraine and foreign practices. It is concluded that copyright allows to adequately protect the forms of expression of a computer program: object and source codes of the program. It is noted that a computer program shall be protected if it is original in the sense that it is the author's own intellectual creation, and no other criteria shall be applied to determine its eligibility for protection in Ukraine. Like any other copyright object, a computer program has «legally indifferent» and «legally significant» elements of the form of expression. The legally indifferent elements of a computer program should include a) elements dictated by the efficiency of a computer program; (b) elements that are dictated by external factors; and (c) elements that the original programmer had taken from the public domain. The main approaches to the use (copying) of the source or object code of computer programs as part of other computer programs are given: «literal copying» and «non-literal copying.» It is concluded that «non-literal copying» of a computer program cannot violate the copyright law in Ukraine since the ideas and principles on which any element of a computer program is based are not protected by copyright. It is assumed that the modification of a computer program by eliminating technical means of protection and further use of computer program gives grounds to qualify such actions as two separate types of copyright infringement: infringement of the copyright holder's property rights and deliberately circumventing technical means of copyright protection. It is noted that in some scenarios, theuse of works under the limitation of copyright without circumvention of technical means may be impossible. The proposal to legislatively provide for the possibility of a person who has the right to freely use work to contact the copyright holder with a request to remove technical means solely for such use, as well as cases of permissible circumvention of technical means, has been made.Keywords: computer program, copyright, literal copying, non-literal copying

scholarly journals The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice

2019 ◽  
Vol 3 (1) ◽  
pp. 133-156
Author(s):  
Nuno Sousa e Silva
Keyword(s):  
Copyright Protection ◽  
Case Law ◽  
Copyright Law ◽  
Preliminary Ruling ◽  
Main Criterion ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The One ◽  
Definition Of ◽  
The Eu

Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.

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