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Legal protection of computer software against misuse — Feasibility or fond hope?

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References

  1. [1978] 3 All E.R. 824, 830,per Lord Denning M.R. (as he then was).

  2. Street on Torts, 7th edn. Butterworths, 1983, 377.

  3. [1979] A.C. 731.

  4. [1985] F.S.R. 608, Tribunal de Grande Instance, Paris.

  5. A detailed discussion of the many licensing agreements for user of software is outside the scope of this article. Each software “house” may have licensing arrangements unique to that house. For an illuminating and useful survey of licensing arrangements, see:Best Terms: a Guide to Software Acquisition, ed. David V. Marshall, Department of Law, The Polytechnic of North Staffordshire, 1985.

  6. In this context, “contract of employment” means “contract of service” within the meaning of theEmployment Protection (Consolidation) Act 1978, s.153.

  7. [1946] Ch 169.

  8. SeeHerbert Morris v. Saxelby [1916] 1 A.C. 688.

  9. A detailed discussion of the Tort of Breach of Confidence is outside the scope of this article. See, however,Oxford v. Moss [1979]Crim. L.R. 119; and theLaw Commission Working Paper No.58, Breach of Confidence (1974).

  10. Hilary F. Pearson,Computer Contracts, 1st edn. 1984, Financial Training Publications, in particular Chapter 9.

  11. Pearson,op. cit., at 139.

  12. Ms. Pearson has practised as a lawyer in England and in the United States of America. Her excellent workComputer Contracts is subtitled “An International Guide to Agreements and Software Protection”. In spite of the enactment of the Copyright (Computer Software) Amendment Act 1985, Ms. Pearson's work should be read by English lawyers with a degree of caution. It is written by a lawyer who is more used to American, rather than English, Law of Intellectual Property — and that is said with the greatest respect to Ms. Pearson's scholarship.

  13. [1986] 1 All E.R. 617.

  14. B. Niblett,Legal Protection of Computer Programs, Oyez, 1st edn. 1980, 17.

  15. European Patents Convention, Article 52(2).

  16. Emphasis not in the original.

  17. Niblett,op. cit., at 17.

  18. [1980] F.S.R. 564.

  19. “... A new term, ‘firmware’, has been coined to refer to hybrid programs which are fixed in some manner to a hardware element such as a semi-conductor chip. Although these devices control machine functions, and are intended to be permanent parts of the computer hardware, they contain instructions and are programmed in the same manner as other software...” — Professor Gerald Dworkin, “The Nature of Computer Programs” inInformation Technology: The Challenge to Copyright, Lahore, Dworkin & Smyth, Sweet & Maxwell, (1984).

  20. [1980] F.S.R. 564.

  21. Patents Act 1977, s.1(1)(a).

  22. Patents Act 1977, s.1(1)(b).

  23. Patents Act 1977, s.1(1)(c).

  24. See ss 2, 3 and 4 of the Copyright Act 1956.

  25. See the Copyright Act 1956, s.4.

  26. Copyright Act 1956, s.12.

  27. See the Copyright Act 1956, s.(5)(a).

  28. See the Copyright Act 1956, s.14.

  29. See the Copyright Act 1956, s.15.

  30. Presumably this must encompass the deliberate copying of computer programs the subject of a copyright, on to magnetic media. If it does not, then the Law of Copyright as it relates (or does not relate, as the case might be) to computer programs is in worse case than before the enactment of the Copyright (Computer Software) Amendment Act 1985. Taking this argument to its logical conclusion: the reproduction of a computer program the subject of a copyright, on the screen of a Visual Display Unit, by an unauthorised person, must must amount to a contravention of s.2 (5) of the Copyright Act 1956, and hence a contravention of s.1(1) of the Copyright (Computer Software) Amendment Act 1985. Such a reproduction must surely incur the penalties in s.3 of the Act of 1985, as “versions of the program converted out of a computer language” within s.1(1) of the Copyright (Computer Software) Amendment Act 1985.

  31. See the Copyright Act 1956, s.2(5)(b).

  32. See the Copyright Act 1956, s.2(5)(c).

  33. See the Copyright Act 1956, s.2(5)(f).

  34. The Modern Law of Copyright, Butterworths, 1980, 3.

  35. Lahore, Dworkin and Smyth,Information Technology: The Challenge to Copyright, Sweet & Maxwell, 1984.

  36. [1985] F.S.R. 245.

  37. Section 2 of the Copyright Act 1974 (Australia) is identical in wording to s.2 Copyright Act 1956 (United Kingdom).

  38. C. Tapper,Computer Law, Longmans, 3rd edn. 1983,passim.

  39. [1982] F.S.R. 124.

  40. See s.2(5) of the Copyright Act 1956 for actions which constitute infringement of a copyright.

  41. H.C. Deb. Vol. 73, 1984, Cols 1338–1339.

  42. Government Green Paper (1983) Cmnd. 9117: “Intellectual Property Rights and Innovation”. Professor Dworkin footnotes this in his article “The Nature of Computer Programs”, in Lahore, Dworkin & Smyth,supra n. 54.

  43. [1980] F.S.R. 564.

  44. I.e., s.21 of the Copyright Act 1956.

  45. See note 66supra.

  46. Copyright (Computer Software) Amendment Act 1985,.s.3.

  47. Government White Paper (1986) Cmnd. 9712, “Intellectual Property and Innovation”, para. 12.2.

  48. (1986) Cmnd. 9712.

  49. (1986) 2 Y.L.C.T. 122, 125.

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  1. Edward Bryn Pugh BA (Law)
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My thanks are due to Dr Penelope Pearce, Head of Law, Liverpool Polytechnic for advice, encouragement and assistance.

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Pugh, E.B. Legal protection of computer software against misuse — Feasibility or fond hope?. Liverpool Law Rev 9, 45–67 (1987). https://doi.org/10.1007/BF01207249

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