What is “software”?

Practically speaking “software” is whatever is necessary to produce, in conjunction with the hardware and data, the results the user wants from a computer system. Unfortunately, there is no legal definition of software. The most appropriate is the WIPO definition stating that “software” is

"[a] set of instructions capable, when incorporated in a machine readable medium, of causing a machine having information processing capabilities to indicate, perform or achieve a particular function, task or result."

How is software protected?

The main intellectual property right that protects software and all its modifications and revisions is copyright.  Software in order to be protected by copyright, (i) must be "original" (i.e. the author must have created the work through his own skill, judgment and individual effort and must not have copied it from other works) and (ii) must be recorded in writing.

As far as the above are observed, copyright also protects other elements of software, such as:

• screen displays or other visible elements that appear when the computer program is running or icons which appeared on certain buttons used in a screen display;
• the text embodied in the layout of a screen display might also be protected by literary copyright;
• music created by a computer program, played as part of a computer game, for example, is protected as a musical work;
• insofar as a program contains literary material, it may be protected as a literary work;
• elements of software may be protected as compilations. For example, a "computer program" may, when analysed, actually consist of a composite of smaller interrelated programs. The collection of programs may be protected as a compilation if sufficient skill and effort has gone into the selection of the works included in the compilation;
• some elements of a computer program (for example, on-screen look-up catalogues which users may search in order to find information) may constitute a database. A database will be protected by copyright if it can be said to constitute the author's own intellectual creation, by virtue of the selection or arrangement of its contents.

Protection applies to the expression in any form of a computer program. However, copyright does not exist in single-letter or single-word commands entered into a system by users of a computer program. Single words in isolation cannot be considered to be literary works. In accordance with this principle, algorithms and user keyboard commands are not protected insofar as they comprise ideas and principles.

How is copyright in a software infringed?

However, copyright will be infringed when:

• loading or running a computer program without authority or
• when making an arrangement or altered version of it or translating the program. Translating a computer program includes converting it into or out of a different computer language or code; where the source code of a program has been copied.
• Case-law suggests that claims for "altered" copying of more abstract features of the source code, such as the general structure, design features or architecture of a computer program, may succeed if it can be shown that a substantial part of the programmer's skill, labour and judgment has been taken.

What is not protected?

In a recent case, it was confirmed that copyright in computer programs did not protect the following from being copied:

• programming languages;
• interfaces;
• the functionality of a computer program.

The "look and feel" infringement is a difficult one because it is possible for two programs produce the same results even if they are completely different in terms of their underlying structure or program code.

For example, 2 and 2 make 4. But so does 2 times 2, or 6 minus 2, or 2 per cent of 200 or many other things. Many different processes may produce the same answer and yet remain different processes that have not been copied one from the other".  Another analogy is that of a chef who liked the taste of a particular pudding and instead of using the existing written recipe, developed and recorded his own recipe to produce a pudding which tasted the same. In such circumstances, his written recipe would not have infringed copyright in the earlier written recipe as a literary work, even though the end result of both recipes was the same.

However, please consider that if the case were to be decided under US law, it may be decided differently.

In view of the above, it is suggested that software is also protected as confidential information to maximize protection.