Manual to digital the shift has made the entire humanity to enjoy the software cradles to work themselves to obtain a particular target. In the antique days the entire work had progressively completed manually which mutatis mundatis introduced machine work which was swept away by the software technology. Now the status has arrived that a person can control whole work going on in another place through his personal computer. All the software has developed from the human intellect so it must be regarded as an intellectual property. But condition of tangibility mentioned in the theory of IP has made the courts confused to put it under the title intellectual property. This article covers brief idea on software; copy right, Digital Millennium Copyright Act 1998 and important case laws with US origin.
Computer Software is a set of machine readable instructions that directs a computer processor to perform specific operations. It is different from computer hardware which is tangible in nature. Hardware and software are interdependent in nature. There are different kinds of software such as application software, system software and embedded software. It is usually written with High Level programming Language and is friendly with users. The history of software is constituted by Alan Turing’s theory, Moore’s Theory, contributions of Bill Gates and Steve Jobs, IBM and many other software companies. Further software vests the user with the right to use in a licensed environment. It can be patented in some countries but usually they are give copyright as it is recognized more of artistic nature.
What is Copyright ? Copyright is a form of intellectual property applicable to any expressible form of idea or information that is substantive and discrete. It gives the author exclusive rights on that property and any person on unauthorized usage of the same will constitute copyright infringement. It is given for literary works, music, movies etc. They are territorial and do not extend beyond the territory which granted such right. It came about with the invention of printing press and with wider public literacy. Charles II of England passed Licensing of press Act 1662 to regulate the copying of literary works. Statute of Anne was the first real copyright Act and gave publishers rights for a fixed period and expires after that period. The Copyright Clause of the United States Constitution 1787 authorized copyright legislation. Under the Berne convention the author need not apply for copyright as they will automatically come force on creation. © is the symbol used in a copyright notice issued in US which was welcomed by world wide acceptance. It gives the following exclusive rights:
- To produce copies, reproduce or sell the work
- Import and export the work
- Create derivative work
- Perform or display the work publicly
- To sell or assign these rights to others
- To transmit or display by radio or video
Copyright law is not limited to artistic work. It extends to machine readable software. Software copyright seeks are mostly belong to the category of proprietary software companies to prevent unauthorized use of software developed by them. The copyleft licenses impose duty upon the licensees to share their modifications to the copyleft work with the user or copy owner under some circumstances. In ancient times the software was considered as a utilitarian good produced from source code rather than from a creative work. Copyright Office of US classified the software as blue prints of a bride and executable code. The commission on New Technological Uses of Copyrighted work was established in 1974. It traced that software embody an author’s original creation are proper subject matter of copyright. In1970 US congress amended the 17 U.S.C that to allow the owner of the program to make another copy and use it in the computer. In 1998 the meticulous change occurred in the IP sector of US through the enactment of Digital Millennium Copyright Act which states evasion of copyright protection is a crime and is therefore penalized.
DCMA – Digital Millennium Copyright Act
The Digital Millennium Copyright Act 1998 was enacted at the 105th United States Congress. It implements two treaties of World Intellectual Property Organization. It states that production and dissemination of technology, devices or service intervene to circumvent measures that control access to copyrighted works. Some of the provisions in the Act can be dealt in brief.
- WIPO Copyright and Performance and Phonograms Treaties Implementation Act amend U.S copyright law to comply with WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.
- Online Copyright Infringement Liability Limitation Act creates safe harbor for online service providers against copyright infringement liability provided that they are complied with specific requirements.
- Computer Maintenance Competition Assurance Act modified s.117 of the copyright title so that those repairing computers could make certain temporary limited copies while working on a computer. But this concept was reversed in a landmark case.
- It clarified and added duties of copyright Office facilitate distance education etc.
- Vessel Hull Design Protection Act added sui generis protection for hulled boat design.
CASES NARRATING SOFTWARE COPYRIGHT PROTECTION
- Viacom Inc. V. YouTube, Google Inc: The court held that the You Tube could not be held liable based on general knowledge that users on its sites were infringing copyrights.
- IO Group Inc. v. Veoh Networks Inc : The court held that defendant’s video sharing website complied and was entitled to protection of statute’s safe harbor provision.
- Edelman v. N2H2: Court granted the declaratory judgment to affirm the amended rights of a computer researcher when reverse engineering the censor ware product of the defendant N2H2 in case he intended to publish the finding.
- Lenz v. Universal Music Corp. : The court ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected the fair use of copyrighted material.
DCMA’s COPYRIGHT PROTECTION EXCEPTION FACTORS
- Educational purpose
- Documentary film making
- Non Commercial videos
- Computer programs that enable wireless telephone handsets to execute software application where circumvention is accomplished for the sole purpose of enabling interoperability of such application
- Computer Programs in the form of firm ware or software
- Video games accessible on personal computers and protected by technological protection that control access to lawfully obtained works.
- Motion pictures on DVD those are lawfully made and acquired.
- Computer programs protected by dongles.
- Literary works in e-books that prevent enabling either of books read aloud function.
The utility and need of software is increasing day by day. So the number of software available in the market will be more and thereby the need of copyright protection will be increased. Hence US being the pool of software should have strong legislation to protect the rights of its authors. Though DCMA works efficiently, regular check must be done on the statute to make necessary amendments at the right time in right sense.