Although the use of computer language has started in 1940, only now with this lawsuit,a question has been raised whether a computer program is copyrightable or not.
I think that the whole judgment will be mere discretionary, due the lack of case precedents in this arena,that often help the court to reach a judgment.Aside from the technical aspect of the lawsuit,it mainly depends on "literary work" interpretation, and whether the court will be broadly interpret it to encompass computer language, or narrowly to exclude it from the copyright protection scope. Computer language is an algorithm, which appears to me as a general idea that can be formed in different shapes.
In the case Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd (1994) which is one of the most important software copyright cases in the UK it was decided that “copyright cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea”
I would agree, that a programming language is not a literary work for the purposes of copyright law. In any case, I would see a strong public policy argument against the protectability of a language.
Arnold J (High Court) in SAS v. World Programming held that, following Plumfrey J's decision in the Navitaire case:
"... the distinction which Pumfrey J drew between a computer program and the language it is written in is, despite his hesitancy on the point, perfectly consistent with the distinction between expressions and ideas, procedures, methods of operation and mathematical formulae."
As with the concept of protection of computer programs by patents, the legislation leaves room for debate — computer programs are not patentable "as such", whilst recital 11 to directive 2009/24/EC provides that, although "it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright," "to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected." As with "as such", "to the extent" is perhaps the critical phrase here, since it suggests that it might be possible for a language to be more than an idea or a principle.
To my mind, a language (which comprises different devices — a vocabulary, a grammar and, when used appropriately, a meaning) is a tool, which is used to construct expression. It is the building blocks through which ideas can be expressed, and, as such, does not amount to an act of expression it itself.
On this basis, whilst considerable thought and effort might be put into developing a language — something which is easy to use, can be understood by a non-programmer through use of well-chosen command terminology and the so on), it does not necessarily translate into a copyrightable word, to my mind.
Secondly, I would argue that the need to enable (and encourage) interoperability should mean that, from a policy point of view, reverse-engineering a language, and creating a tool capable of interpreting scripts in that language, is not an infringement of copyright. Phrased slightly differently, where a computer program is intrinsic to a particular piece of software or group of software, such that, if I wish to write a plug-in or a script for that software, I am required to use that language, public policy should prevent control over the use of that language.
I'd see it this way:
Company A develops a platform which is used by many companies. These companies invest considerable time and resource in creating scripts for the platform, to suit their own business operations.
Company B wishes to enter the market, and provide a competing application. Because of the prior investment of the existing users of Company A's product, in terms of the scripts, moving to Company B's product will not happen unless the scripts can be ported across.
Company B thus has an option — either, it must provide an engine which translates scripts written for Company A's software into a form suitable for Company B's software, or else it must support Company A's scripts.
Directive 20009/24/EC considers that, from a competition law point of view, interoperability of is considerable significance and, to that end, provides two for two approaches for developing interoperable programs. The first, observation to determine ideas and principles (Art. 5(3)) is broader, in that it's not limited to interoperability, whilst Art. 6, decompilation, permits a user with a right to use the program in question to decompile a program to obtain "information necessary to achieve interoperability."
Clearly, it is the general public interest to enable competition and thus permit the portability of scripts. If Company B can re-implement the environment necessary to run the scripts without access to the source code of Company A's program, it should be able to do so without restriction. Provided that Company B adheres to the limitations on Articles 5(3) and 6, this should not be an infringement of copyright.
(One might go further here, though — if enabling competition through interoperability is an important public benefit, why is the exception limited to reverse-engineering, rather than being a positive obligation on a copyright holder to make available all materials necessary to build an interoperable program. If we look into the world of telecoms, providers with SMP can be obliged to provide access to their networks and services, and there is a general obligation to negotiate interconnection (which, again, can be mandated) and it would seem that, where the author of a copyright work possesses SMP in terms of the general market in which that copyright work resides, the author should be obliged to publish the necessary interoperability information, so that reverse engineering and studying is not needed — in particular, the right to decompilation is very heavily limited, effectively requiring each person who wishes to create an interoperable program to conduct the decompilation exercise themselves. But perhaps that's a debate for another time.)
My two arguments are rather different — the former is about the protection of a language itself, whereas the latter is about the environment in which programs written in any given language are run. However, to my mind, they both support the general premise that a programming language is not, and should not be, protected by copyright, such that someone can restrict the use of a given language.
I'm greatly looking forward to this case, as I think the issues which is raises are fascinating.
ReplyDeleteWhat do you think? Should a language be capable of protection (presumably as a literary work)?
Although the use of computer language has started in 1940, only now with this lawsuit,a question has been raised whether a computer program is copyrightable or not.
ReplyDeleteI think that the whole judgment will be mere discretionary, due the lack of case precedents in this arena,that often help the court to reach a judgment.Aside from the technical aspect of the lawsuit,it mainly depends on "literary work" interpretation, and whether the court will be broadly interpret it to encompass computer language, or narrowly to exclude it from the copyright protection scope.
Computer language is an algorithm, which appears to me as a general idea that can be formed in different shapes.
In the case Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd (1994) which is one of the most important software copyright cases in the UK it was decided that “copyright cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea”
I wonder what Mr. Lloyd thinks of this case.
I would agree, that a programming language is not a literary work for the purposes of copyright law. In any case, I would see a strong public policy argument against the protectability of a language.
ReplyDeleteArnold J (High Court) in SAS v. World Programming held that, following Plumfrey J's decision in the Navitaire case:
"... the distinction which Pumfrey J drew between a computer program and the language it is written in is, despite his hesitancy on the point, perfectly consistent with the distinction between expressions and ideas, procedures, methods of operation and mathematical formulae."
As with the concept of protection of computer programs by patents, the legislation leaves room for debate — computer programs are not patentable "as such", whilst recital 11 to directive 2009/24/EC provides that, although "it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright," "to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected." As with "as such", "to the extent" is perhaps the critical phrase here, since it suggests that it might be possible for a language to be more than an idea or a principle.
To my mind, a language (which comprises different devices — a vocabulary, a grammar and, when used appropriately, a meaning) is a tool, which is used to construct expression. It is the building blocks through which ideas can be expressed, and, as such, does not amount to an act of expression it itself.
On this basis, whilst considerable thought and effort might be put into developing a language — something which is easy to use, can be understood by a non-programmer through use of well-chosen command terminology and the so on), it does not necessarily translate into a copyrightable word, to my mind.
Secondly, I would argue that the need to enable (and encourage) interoperability should mean that, from a policy point of view, reverse-engineering a language, and creating a tool capable of interpreting scripts in that language, is not an infringement of copyright. Phrased slightly differently, where a computer program is intrinsic to a particular piece of software or group of software, such that, if I wish to write a plug-in or a script for that software, I am required to use that language, public policy should prevent control over the use of that language.
ReplyDeleteI'd see it this way:
Company A develops a platform which is used by many companies. These companies invest considerable time and resource in creating scripts for the platform, to suit their own business operations.
Company B wishes to enter the market, and provide a competing application. Because of the prior investment of the existing users of Company A's product, in terms of the scripts, moving to Company B's product will not happen unless the scripts can be ported across.
Company B thus has an option — either, it must provide an engine which translates scripts written for Company A's software into a form suitable for Company B's software, or else it must support Company A's scripts.
Directive 20009/24/EC considers that, from a competition law point of view, interoperability of is considerable significance and, to that end, provides two for two approaches for developing interoperable programs. The first, observation to determine ideas and principles (Art. 5(3)) is broader, in that it's not limited to interoperability, whilst Art. 6, decompilation, permits a user with a right to use the program in question to decompile a program to obtain "information necessary to achieve interoperability."
Clearly, it is the general public interest to enable competition and thus permit the portability of scripts. If Company B can re-implement the environment necessary to run the scripts without access to the source code of Company A's program, it should be able to do so without restriction. Provided that Company B adheres to the limitations on Articles 5(3) and 6, this should not be an infringement of copyright.
(One might go further here, though — if enabling competition through interoperability is an important public benefit, why is the exception limited to reverse-engineering, rather than being a positive obligation on a copyright holder to make available all materials necessary to build an interoperable program. If we look into the world of telecoms, providers with SMP can be obliged to provide access to their networks and services, and there is a general obligation to negotiate interconnection (which, again, can be mandated) and it would seem that, where the author of a copyright work possesses SMP in terms of the general market in which that copyright work resides, the author should be obliged to publish the necessary interoperability information, so that reverse engineering and studying is not needed — in particular, the right to decompilation is very heavily limited, effectively requiring each person who wishes to create an interoperable program to conduct the decompilation exercise themselves. But perhaps that's a debate for another time.)
My two arguments are rather different — the former is about the protection of a language itself, whereas the latter is about the environment in which programs written in any given language are run. However, to my mind, they both support the general premise that a programming language is not, and should not be, protected by copyright, such that someone can restrict the use of a given language.