For the purposes of copyright protection, a computer program is treated as a literary work, so that copyright will subsist if the program is an original literary work: see Sections 1 and 3(1)(b) Copyright Designs and Patents Act 1988 ("the CDPA").
The owner of copyright in a computer program has the exclusive right to copy the work (ie to reproduce the work in any material form) or to make an adaptation of the work or any substantial part thereof: sections 16 and 17 CDPA. Copying includes storing the work in any medium by electronic means: section 17(2) CDPA and making copies which are transient or incidental to some other use of the work: section 17(6) CDPA. An "adaptation" means an arrangement or altered version of the program or a translation of it, and "translation" includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code, otherwise than incidentally in the course of running the program: section 21 CDPA.
In Ibcos Computers v Barclays Mercantile Highland [1994] FSR 275, Jacob J dealt with the proper approach to copyright infringement in computer programs. He held that:
a. Matters such as program structure and design features may be considered as part of the copyright work in addition to the bits of code and specific program structure within an individual program.
b. Individual programs as well as the overall program are capable of copyright protection if they were the result of work, skill and judgment.
c. Copyright can exist in the source code of a computer program, provided it has sufficient originality.
d. When deciding whether a substantial part of the work has been reproduced, consideration is not restricted to the text of the code, and issues of copying and substantiality can arise at various levels of abstraction, and accordingly the Court may look at program structure and design features.
e. The unauthorized use of confidential source code may amount to a breach of confidence. In dealing with source code, it is to be noted that it often includes programmer comments and, in the words of Jacob J "is very important to anyone who wants to copy a program with modifications ….".
In Cantor Fitzgerald v Tradition (UK) [2000] RPC 95, at paragraphs 76-79, Pumfrey J noted that it is generally accepted that the "architecture" of a computer program is capable of protection if a substantial part of the programmer's skill, labour and judgment went into it, and the term "architecture" is capable of referring to the overall structure of the system at a very high level of abstraction including what was referred to in Ibcos as "program structure".
These authorities establish that unlawful "use" of software can take many forms, and, although such unlawful use includes, it is not limited to, the use or copying of all or part of source code.
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