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.

16. Copyright protection

2020 ◽  
pp. 271-320
Author(s):  
Ian J. Lloyd
Keyword(s):  
Copyright Protection ◽  
Computer Software ◽  
Copyright Owner ◽  
Property Law ◽  
The United Kingdom ◽  
Software Copyright ◽  
Copyright Ownership ◽  
The Law ◽  
Major Branch ◽  
Independent Work

This chapter discusses protection under the law of copyright. Topics covered include copyright basics; obtaining copyright; forms of protected work; the requirement of originality; copyright ownership; copyright infringement; the nature of copying; other rights belonging to the copyright owner; the development of software copyright; and literal and non-literal copying. The law of copyright is perhaps the major branch of intellectual property law relevant to computer software. Virtually every piece of software will be protected by copyright. The main issue concerns the extent of the protection that is offered. Computer programs are generally protected as literary works. This was appropriate in the early days where computers performed essentially functional tasks – often associated with mathematical calculations. It is arguable that modern software, which often makes extensive use of graphical images, is more akin to an artistic work than a literary one. Regardless of categorization, the courts in the United Kingdom have applied a narrow interpretation of the scope of copyright. Reproduction of the underlying code will be unlawful but replication through independent work of the effects produced by the code (often referred to a non-literal copying) will not.

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.

The Law Enforcement Weakness of Songs and Musics Copyright Crimes

2021 ◽  
Vol 3 (1) ◽  
pp. 139-154
Author(s):  
Edi Tuahta Putra Saragih ◽  
Muhammad Citra Ramadhan ◽  
Isnaini Isnaini
Keyword(s):  
Law Enforcement ◽  
Research Method ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Cultural Factor ◽  
Legal Research ◽  
The Real ◽  
The Law ◽  
Real Picture

This research aimed to: (a) obtain the forms of copyright infringement of songs and/or music (with or without lyrics); (b) understand the role of the police, in this case the Police Precinct, in the law enforcement; (c) identify the factors that influenced the law enforcement. The research method used the normative-empirical legal research, with the initial stages of specifying norms in order to get the proper picture, and then specifying empirical events in order to get the real picture. The research results showed several matters: 1) The forms of copyright infringement of songs and/or music (with or without lyrics) found included: the distribution of the works or the copies, the performances of the works, and the announcements of the works; 2) Police Precinct did notultimately carry out their role as a law enforcer for the copyright infringement of songs and/or music (with or without lyrics); and 3) The factors that influenced the law enforcement on the copyright infringement of songs and/or music (with or without lyrics), namely: legislation factor, in the matter of complaint offenses; law enforcement factor, in terms of the capacity of members; less supportive factor of facilities and infrastructure; legal awareness factor, in the problem of the lack of legal counseling; and cultural factor, related to the differences in norms in the copyright law between those in society and those in regulations. 

scholarly journals A Pattern-Oriented Approach to Fair Use

2017 ◽  
Author(s):  
Michael J Madison
Keyword(s):  
Social Practices ◽  
Copyright Law ◽  
Fair Use ◽  
Social Implications ◽  
Social Scientists ◽  
The Social ◽  
Case Application ◽  
Use Factors ◽  
Oriented Approach

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.

Law and Philosophy: The Contribution of Mr. Roy Stone

1968 ◽  
Vol 26 (1) ◽  
pp. 131-140
Author(s):  
T. B. Hadden
Keyword(s):  
Recent Trend ◽  
Good Deal ◽  
Legal Studies ◽  
The Social ◽  
Total Failure ◽  
Important Means ◽  
The Subject ◽  
The Law ◽  
Integrated Study

The recent trend towards the socialisation of legal studies has not unnaturally caused a good deal of confusion and disagreement on the role of jurisprudence. However, since the law is centred on dispute and argument, there can be little real objection to the extension of the process to the philosophy of law. Still it would be difficult to devise a less immediately appealing way of re-establishing and reviving the subject of jurisprudence than another dose of the schools, or another tendentious review of contemporary exponents. My excuses for doing just that are not even particularly novel—an appreciation of the importance of the pressures towards an empirical approach to law and legal studies, and the usual desire to get some of the more distracting flies safely corked back again into their bottles. However, the total failure of the recent Cambridge Committee on the Organisation of the Social Sciences to produce even the outline of an overall structure for the integrated study of the law as an important means of social control does at least provide a suitable opportunity for the re-examination of the role of jurisprudence.

Interface Between Right to Education and IPR

2020 ◽  
pp. 57-75
Author(s):  
Akanksha Jumde ◽  
Nishant Kumar
Keyword(s):  
Copyright Protection ◽  
Copyright Law ◽  
Fair Use ◽  
Educational Materials ◽  
Right To Education ◽  
The Right ◽  
International Instruments

The chapter seeks to explore the extent to which copyright law impedes the fulfillment of the right to education and discuss the alternatives that seek to balance these conflicting rights. The chapter is divided into three parts: the first part of the chapter discusses the embodiment of the right to education in several national and international instruments, the extent of problem of the lack of access to educational materials due to copyright protection. The next part of the chapter discusses the flexibilities provided in international copyright law and efficacy of the same, primarily the doctrine of fair use. The last part of the chapter discusses alternatives to fair use and impact of these supplementary mechanisms.

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.

The Law of Musical Borrowing

2021 ◽  
Author(s):  
Michael W. Carroll
Keyword(s):  
Digital Technology ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
User Generated Content ◽  
Musical Borrowing ◽  
Online Platforms ◽  
The Law ◽  
Musical Creativity ◽  
Secondary Liability

Creating music often involves borrowing from preexisting sources. Copyright law applies to a range of common borrowing practices including sampling, remixing, linking, and creating user-generated content for online platforms. When analyzing musical borrowing, it is important to first establish what aspects of musical creativity copyright does and does not protect. A series of cases illustrate when the law identifies borrowing of unprotected aspects of prior works, such as musical ideas, common melodic sequences, and chord progressions. Other cases illustrate how the law also permits some borrowing of protected expression if the borrowing is fair use. Digital technology facilitates musical borrowing, and certain online practices such as posting hyperlinks to other musical sources are permitted unless the person posting the links knows that the link leads to infringing material, intends to encourage others to infringe or meets other requirements for secondary liability for copyright infringement.

Freedom to tinker

2016 ◽  
Vol 17 (2) ◽  
Author(s):  
Pamela Samuelson
Keyword(s):  
Computer Programs ◽  
Contract Law ◽  
Copyright Law ◽  
Legal Recognition ◽  
Legal Principles ◽  
Wide Range ◽  
The Law ◽  
Modest Degree

AbstractTinkering with technologies and other human-made artifacts is a longstanding practice. Freedom to tinker has largely existed without formal legal recognition. Tinkering has typically taken place in an unregulated zone within which people were at liberty to act unobstructed by others so long as they did not harm others. The main reason why it now seems desirable to articulate some legal principles about freedom to tinker and why it needs to be preserved is because freedom to tinker is being challenged by some legal developments. This Article explains that user-innovators have traditionally had considerable freedom to tinker under trade secrecy, patent, and trademark laws. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Copyright law and sometimes contract law place substantial constraints on user rights to tinker with and modify computer programs and other digital works. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. This Article offers suggestions about how and why the law should protect a zone of freedom to tinker for socially beneficial purposes.

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