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"Computer law is a very complicated area, and we cannot hope to cover it in any depth in this course. However, when dealing with software and software-related issues, you have legal responsibilities and legal rights. Legal systems and the laws they uphold vary from country to country, and also change over time. The topics covered here are intended to be as general as possible, but we shall also draw on specific laws and directives to illustrate the points made. We will particularly be concerned with legal issues involving:
- contracts;
- intellectual property rights;
- data protection;
- computer misuse;
- health and safety.
Contractual issues
Legal contracts set out the parameters of an agreement, so that all parties understand their responsibilities. You may have come into contact with a number of different types of contract: contracts of employment, insurance contracts, consultancy contracts, contracts to supply software, and so on. Anything that contravenes these contracts is illegal and can result in legal action being taken. Thus, it is important that all parties to a contract understand what is required of them. This may sound fairly obvious, but there are some issues, such as confidentiality and intellectual property rights, which may not be considered during the drawing up of contracts. Often, too, the implications of what is stated in an agreement are not fully realised by those party to it.
For example, if you are an employee, you will have signed a contract of employment, and you would expect it to include something about your terms of employment, such as your holiday entitlement, hours of working, the duties expected of you, and so on. Your employer, in turn, will enter into contracts with clients, which set out the terms of the agreements, including the responsibilities of both the client and your employer. Among these terms may well be a statement of confidentiality, and you will be bound by that statement as an employee of the company. What happens after the completion of the contract may also be determined.
Note that there are some inalienable rights related to employment and consumer protection that cannot be overridden by contracts, however phrased.
Ownership of software
The ownership of software is a thorny legal issue, one that gives rise to many situations which are difficult to disentangle. The principal reason for the difficulty is the intangible nature of software. The kinds of problems that can occur when considering the ownership of software are indicated by the following examples.
- If your company develops a software system for a client, can the client modify the system and sell it to other companies? Can your company produce modified versions and sell those to other customers?
- If you, as a member of the project team, gain expertise through working on the system, and then move to a new company, can you use this expertise to develop a system for the new company? What use can be made of design ideas, sketches, prototypes and so on produced in the development of the original system?
- If you come up with a novel application and discuss it with friends and colleagues via an electronic news group, would you then be able to gain a patent to develop the idea and market the product? What if someone else takes your idea and develops a commercial product from it? What rights might your employer have over any wealth generated by your idea?
The contracts between you, your organisation and the client may cover some of these eventualities, in which case the terms of the contract will dictate what can and cannot be reused, any time delays required between the original development and further exploitation, and the ownership of ideas and creations. However, it is not uncommon for these issues to be overlooked or misunderstood when contracts are being drawn up.
As technology and software development move forward, other issues arise. For example, with self-correcting code, neural networks, genetic algorithms and other software that shows a level of ‘intelligence’, who is responsible for the software? Who owns the software? Is it in fact ‘owned’ by anyone?
Copyright and patents
The law can be used to protect ideas in two ways: through the law of patents and through copyright law. Together these are known as intellectual property rights (IPR). Protecting ideas is generally believed to be in the general interest of society, since without that protection innovation and invention might not be forthcoming. This view is supported by the national governments of the world’s dominant nations, who campaign for IPR protection and enforcement internationally. However, not everybody agrees with this position, especially in relation to software. For example, the Free Software Foundation is an influential organisation fighting against software patents in particular, and IPR protection in general.
Patents are used to protect inventions that are new or involve a novel process and are capable of industrial application; the subject of the patent must not, however, be ‘obvious’ and must not have been published before. For example, the data compression technology used by Stac Electronics in their disc-compression product Stacker was considered non-obvious and patentable; the patents were subsequently upheld in 1994 in a court fight between Stac and Microsoft. A patent gives the owner a monopoly to exploit the invention for a number of years, and provides protection for the idea behind an invention. Software patents are a controversial and rapidly evolving subject.
Copyright, on the other hand, is automatic (that is, you do not have take any special action such as paying to have the subject registered) and it protects the expression of an idea, not the idea itself. Copyright law is often used to protect software, but it has proved difficult to decide what constitutes the expression of an idea. Does it include the structure and organisation of the software? If you take the same system and translate it into a different programming language, the expression has changed but the idea is still intact. So, has copyright been infringed? The functionality of a system embodies ideas about how best to support people in their work. So, do systems that provide similar functionality infringe copyright? This latter notion seems absurd and surely cannot be the case: for example, how many word-processing packages exist with virtually identical functionality? These issues pose real problems for both software professionals and lawyers, and definitive answers to these problems are difficult to produce; cases brought to court can take weeks to consider. However, over the past 20 years or so, court cases have set a variety of precedents, and the following four examples, adapted from a book by David Bainbridge (1994) Software Copyright Law, illustrate some of the judgements given.
1 Digital Communications Associates (DCA) v Softklone Distributing Corporation (SDC).
The plaintiff (DCA) designed a screen display for a communications program which showed a list of commands with the first two letters highlighted and in block capitals; the user selected a command by entering its first two letters. The defendant (SDC) developed another communications program with a similar display. The court upheld protection of the screen display, saying that the idea was the concept of such a screen (and therefore not copyrightable), and the expression (that is, the use of highlighting and capital letters, and the organisation of the command) was the means to communicate the idea (and hence was protected by copyright).
2 Broderbund Software (BS) v Unison World (UW).
This case also concerned screen displays.
In this instance, it was argued by the defendant (UW) that there was only one way to structure the screens and input, thus they were part of the idea, and not simply expression. In fact, other versions of the screens were produced as evidence, and it was ruled that the screen displays were indeed part of the expression used by BS, and thus copyrightable.
3 Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd (UK).
A software engineer had worked on an accounts package for the plaintiff (Ibcos), and subsequently marketed a competing accounts package for the defendant (Barclays Mercantile). Copyright was held to subsist in the individual program and in the entire software package as a compilation. This case showed that, as well as individual computer programs being protected by copyright, the way they are linked together (structured) may, in some cases, also be protected. In other words, depending on the skill and judgement involved in selecting and arranging the individual programs, copying structural and design features may infringe copyright.
4 Lotus Development Corporation v Paperback Software International. This case showed that overall organisation and structure, the content and structure of commands, and the user interface (choice of words or symbols) are protected by copyright, but the judge in this case said that it does not follow automatically that every expression of an idea is protected by copyright.
He listed four things that must be considered:
- originality – the expression must originate from the author;
- functionality – if the expression simply embodies functional elements of an
idea, it is not copyrightable;
- obviousness – if the expression is inseparable from the idea, it is not
protected;
Trademarks and service marks
The names of products and services are themselves protected as valuable property, and existing marks should not be used for other products or services in the same area of business or economic activity. Trademarks and service marks are registered. In documents such as this one, a trademark or service mark must be acknowledged, as seen below.
Free and open-source software
In the 1980s, a programmer called Richard Stallman established the Free Software Foundation (FSF), a movement that campaigns to prevent the commercial exploitation of software and to prevent restrictions being placed on the use of software. His aim was to provide software that, once bought, could be modified and distributed freely to others. The original piece of free software was a UNIX-like operating system called GNU, which, recursively, stands for ‘GNU’s Not UNIX’.
The term freeware is now used to refer to a piece of software that is given away free to users, although the copyright remains with the originator and the original software cannot be distributed by anyone else. Open-source software is similar to freeware, except that it is maintained and upgraded openly by a community of expert users. If software is free to its users and the originator signs away the copyright, it is referred to as public-domain software. This means that users can modify the software, redistribute it or incorporate it into their own work; that is, they can do whatever they like with it!
Shareware, on the other hand, is software that is intended to be trialled for a limited period (often 30 days). Users are expected to register and pay any appropriate fee after this time has elapsed. Often the onus of registering after the time is up is left to the users, although other tactics, such as timed use or printing help files backwards, are sometimes employed to persuade people to register. Shareware represents the full functionality of the software, and is basically a way of marketing the product."
Open University, 2008.
