Conclusion
The Regulations appear to have reinforced the protection available to software producers under United Kingdom law. The provisions of the Software Directive and the Regulations are complex and not without significant inconsistencies which are likely to prove to be a source of litigation. The drafters of the Regulations chose, unlike many of its European partners, not to adopt the wording of the Software Directive but to write their own interpretation, adding an element of uncertainty to the law in this area, which is perhaps inevitable bearing in mind the linguistic problems of translating and interpreting any directive coupled with the ambiguity and omission of definitions of several key terms. More important, however, than any academic argument will be the practical impact of the new law and its effectiveness in achieving its aim.
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References
Section 3 of the Act
Section 23 of the Act.
Section 3 of the Regulations amending section 3 of the Act.
Article 1(2) the Software Directive, although United Kingdom case law has recognised this see example.Total Information Processing Systems Limited v.Daman Limited (1992) FSR 171 andJohn Richardson Computers Ltd v.Flanders and Chemtec Ltd. (unreported 19th February 1993, cited in Intellectual Property Decisions, April 1993).
Article 1(3) of the Software Directive and section 1(1)(a) of the Act.
Article 2 of the Software Directive and sections 9, 10 and 11 of the Act.
Article 4(a) of the Software Directive, subject to Article 5 and 6 exceptions.
Section 17 of the Act.
Article 4(c) of the Software Directive, section 18 of the Act, subject to the doctrine of the exhaustion of rights.
Article 7 of the Software Directive subject to Article 4, 5 and 6. Chapter VI of the Act.
Article 8 of the Software Directive, section 12 of the Act.
Article 9 of the Software Directive, subject to Article 6, 5(2) and (3).
Article 6 of the Software Directive.
As defined by new section 50(A)(2) of the Act (inserted by section 8 of the Regulations) — broadly it is a person who has a right, under a licence or otherwise to use the program, by contrast the Software Directive uses the term “lawful acquirer”.
Section 50(B)(1) of the Act.
Section 8 of the Regulations, 50(B)(2) of the Act.
Section 50(B)(3)(a) of the Act.
Section 50(B)(3)(b) of the Act.
Section 50(B)(3)(c) of the Act.
Section 50(B)(3)(d) of the Act which reflects narrow interpretation of the wording of Article 6(2) of the Software Directive but is consistent with copyright law protecting the expression of ideas rather than the underlying ideas and principles.
New section 29(4) of the Act, section 7 of the Regulations.
Within the meaning of Article 4(a) and (b).
Article 6(1)(b) of the Software Directive.
Section 11 of the Regulations.
Inserted by section 8 of the Regulations.
Article 9(3) of the Software Directive.
Section 12(2) of the Regulations.
Section 6 of the Regulations does refer to sale, as opposed to put into circulation.
Section 17(6) of the Act and Article 4(a) of the Software Directive.
Section 50(B)(3)(a) of the Act.
Article 85 and 86 of the Treaty of Rome.
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Guedes, L. The European community software directive: The United Kingdom implementation. Liverpool Law Rev 16, 85–96 (1994). https://doi.org/10.1007/BF01080073
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DOI: https://doi.org/10.1007/BF01080073