The Value of a Good Idea : Developing and Protecting Intellectual Property in an Information Age
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There is a need of having standpoint of which is the better way to protect software program, either by copyright, patent law or both, or better to have protection of software by Sui generis which will cover software programs, and to create a new rights for programs which will reward and protects internal and external functional aspects of programming. Likewise, "user interface" generally refers to "all of the devices by which the human user can interact with the computer in order to accomplish the tasks of the computer program.
Some commentators and courts have used the "user interface" and "look and feel" of computer software interchangeably. See, e. Paperback Software International, F. But one commentator states that the majority of scholars differentiate between "look and feel" and "user interface," understanding that "user interface" is one element of "look and feel.
How To Protect Your Intellectual Property The Right Way
Finally, will be the conclusion, and recommendation for the problem of protection of software. Intellectual property refers to the property right conferred by law to protect basically the creations of the intellect. The nature of intellectual property is to encourage fair competition. It gives the copyright owner exclusive rights to control the copying and dissemination of their works and can be a very valuable asset. Copyright gives the copyright owner a number of exclusive rights, such as the right to copy, perform or communicate their work to the public.
Used by permission. A patent is a government issued right granted to individuals or groups that protects their original inventions from being made, used, or sold by others without their permission for a set period of time. Selden,"11 that only an author's original expression of an idea is protected; an idea itself may not be copyrighted. Both are codified today at13, which provides that copyright does not protect "an idea, procedure, process, system, method operation, principle, or discovery.
Morrissey v. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated.
Franklin Computer Corp. Thus, for example, copyright protection does not extend to a description of the rules of a game because the expression of the rules "merges" into the idea of the game. See Morrissey v. Stein, U. For some copyright works people say that it is the expression of an idea that has copyright protection rather than the underlying idea. However, the borderline between expression and idea is very difficult to define - ultimately only the courts can do this. A traditional concept is that copyright protects the expression of an idea but not the idea itself.
This concept has been highly developed by US courts. The approach of the UK court to this in the context of computer programs has been varied. In the case of John Richardson Computers, it was thought that it would be right to adopt a similar approach in England.
The view was that UK copyright cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea. In the case, the plaintiff failed in a claim for copyright in a device for measuring the dimension of sleeves in the form of a cardboard measurement chart. However, it is a fallacy which has survived to the present. Seemingly unchallengeable authority has accumulated on this point, but it has not deterred litigants from attempting to claim copyright in abstract ideas. The requirement that a work must be put into a tangible form is one of the determining factors.
This will be of great importance even if the author is apparently unconscious of what is actually being created, and the control of arrangements whereby the work is produced is left to another. It was held that copyright was owned by the newspaper employing the journalist who had produced the articles purportedly by the jockey, and not the jockey, who simply recounted his experiences, but did not commit them to writing. For instance, in Cummins v Bond19, the author was actually supposed to be a ghost, the spirit of Cleophas from the New Testament who purportedly communicated through a medium.
The pen was held by the medium who was in a trance and who responded to prompting and questioning from the defendant who believed himself to be in touch with dead Glastonbury monks. The court refraining from inquiring into the reality of the alleged spirit held that copyright attached to the medium who actually wrote the alleged utterances down.
However, the physical act of committing words or images into a material form is not always the determining factor and the courts have, in the interests of practical necessity and commercial reality, accepted certain refinements of these principles. A secretary who takes down a dictation of notes or a mere copyist is not an author Riddick v Thames Board Mills Ltd20; British Oxygen v Liquid Air21, an approach that can be justified on the basis that originality for the purpose of copyright arises from the application of skill, labour and effort in creation, not simply the physical labour of compiling a work.
In Kenrick v Lawrence22, the plaintiff sought to claim copyright in the concept of a hand filling in a ballot paper. The court affirmed that there could be no copyright in a banal idea. If an expressed idea was commonplace and simple, nothing short of exact literal reproduction would infringe the copyright in it.
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Similarly, if there is no other way of expressing a certain subject, there will be no copyright capable of protection. A point subsequently applied in a computer software case, Total Information Processing Systems Ltd v Daman Ltd23, although since doubted. In Bagge v Miller24, the plaintiff had suggested the idea for a sketch, but left it to the defendant to compose it in a dramatic work.
He had not written any dialogue and, whatever his degree of artistic involvement, could not be said to be a joint author. In Green v New Zealand Broadcasting Corporation26, broadcaster Hughie Green brought an action for copyright infringement based on a television variety show he had conceived and broadcast successfully in the UK called Opportunity Knocks. The New Zealand Broadcasting Corporation produced their own version of the show incorporating the same format, approach and catchphrases. Hughie Green claimed copyright protection in the literary, musical and dramatic format of the show.
However, because of the skeletal nature of the scripts, simply providing a formula for the production of a talent show contest, no copyright could be claimed.
The scripts themselves only gave guidance and it could not be determined how the material would ultimately be presented on screen. That would only be apparent to those who watched the programme. It was stretching the meaning of coincidence to believe that the New Zealand Broadcasting Company could have independently originated a similar show. However, the Court of Appeal quoted with approval the judgment in Tate v Thomas27 that, since copyright created a monopoly, there had to be certainty in the subject matter of that monopoly in order to avoid injustice to the rest of the world. The seeming clarity of the law in this area has been muddled by remarks taken out of context and by the continuing optimism of some claimants.
A distinction was made in Rees v Melville29 between ideas which could not be the subject of copyright and situations and incidents in a dramatic work, which could be. The court might, in certain circumstances, have to consider that the mode in which the ideas were worked out and presented might constitute a material portion of the whole play, and the court must have regard to the dramatic value and importance of what, if anything was taken.
This would be so even though no language was directly taken. Attempts have recurred in the commercial and industrial world to protect, in particular, the design of products. In the absence of patent protection, the court held the defendant was entitled to copy. In many ways, a program is analogous to a cake recipe, which contains the instructions for mixing and baking a cake.
Unlike the typical cake recipe, however, a program is written in one of various computer languages. Many types of computer languages range from those actually used and understood by human programmers "source code" to the strings of ls and Os used internally by the machine "object code". These screen displays themselves are protected by copyright "copyrightable". In most countries, computer programs are protected by copyright as literary works. Such protection applies to computer programs, whatever may be the mode or form of their expression.
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British law protects computer programs as literary works. The scope of protection for computer programs has been subject to an ongoing debate and has recently been addressed by British courts. A computer program consists of literal and non-literal elements. They are what the user of the programs sees on the screen, the user interface.
Note that this issue is, in some sense, rather narrow. To say that an element of a program-its code, for instance-is copyrightable says nothing about what the author must prove to show that another has infringed that copyright. Nor does the determination of copyrightability tell the author the duration of the copyright, what remedies are available for infringement, or which court has jurisdiction to hear an infringement claim.
Nevertheless, copyrightability is a vital issue which must be determined as a threshold matter in each software copyright case. Are these displays part of the computer program itself? Should they be protected separately as audiovisual works? Are they even "works of authorship"? Still more difficult are the so-called "non-literal" elements of computer programs, such as their look and feel or the "structure, sequence, and organization" of their code. A book contains specific words in a specific order; so too, a computer program contains particular instructions in a particular order.
These are "literal" elements, and, as to both books and programs, literal elements are copyrightable.
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A book, however, also contains a plot or story-line.