Programmes & Copyright
The original EU directive requiring copyright protection for the programmes was updated in 2009. The directive makes clear that computer programmes include programmes in any form, including those incorporated into hardware.
It includes preparatory design work leading to the development of a computer programme provided that the nature of the preparatory work is such that the programme can result from it at a later stage.
The standard of originality in the directive is that the work is the author’s own intellectual creation. This was a compromise between the higher German and the lower British/ Irish standard of protection. Literary works include computer programmes. See the section on the copyright of works in relation to the standard concerned.
A “computer programme” means a programme which is original in that it is the author’s own intellectual creation and includes any design materials used for the preparation of the programme; A computer programme, includes a translation, arrangement or other alteration of the computer programme;
Given the nature of information technology, programmes may be stored and exist in servers worldwide and may be downloaded readily via the Internet. Sharing of files and distribution of programmes will usually constitute infringement. As in other contexts, there is primary and secondary infringement.
As with literary copyright, any reproduction or copying of the programme comprising a substantial part constitutes infringement. An adaptation of the programme constitutes infringement. It is an infringement to make the programme available to the public without the consent of the rights holder.
The fact that another programme produces similar or even superior results and effects does not necessarily imply that the has been copying and infringement. Ideas and concepts are not protected. The independent work of another may produce the same or a superior result.
Look & Feel
As with literary copyright infringement, the courts may focus on similarities at various levels to determine whether or not there has been copying. Replication of the look and feel of the output of the programme may not necessarily infringe copyright.
It may be possible to infer direct copying at some level. Even if there is no literal copying at any level, a court may conclude that there was copying if the overall structure, look and feel of one programme follows that of another earlier programme. The court may consider whether the common features are commonplace.
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