Copyrights, Patents and Trademarks are primary ways of protecting intellectual property rights however they each serve a different purpose and are enforceable in law in different ways in different countries, especially with regards to software.
Copyright was not law, in the UK, until 1709 in the UK, when Parliament passed the “Statute of Anne” which protecting copyright of books and other written work. This law went on to become the basis of modern copyright laws that the copyright holder has the right to charge for duplication or use or prohibit use of the copyrighted work. The law evolved to include new media as it too was developed; gramophone records, film and broadcasting, computer software and digital media. The software industry relies heavily on copyright protection (Adams & McGrindle (2008)) and despite the World Intellectual Property Organization (WIPO)’s efforts at promoting the global needs for standardised intellectual property right protection, the implementation of copyright protection differs from country to country and has not been fully accepted or implemented. This is evidenced by the lack of copyright respect in certain countries that are seen as havens for unenforceable copyright (e.g. China).
In accepted countries, copyright needs only be stated on an original piece of work with a prescribed phraseology to be considered protection. In terms of software this often appears as a licence or usage agreement that sets out what can and cannot be done with the copyrighted material and without the user’s agreement, the software cannot be used. In addition developers use techniques such as limiting installation numbers, machines, re-instillations, coding to hardware keys and so on and today often require connection to a verification server via the Internet for the complete process.
Case law is used as a basis of definition for the scope of software copyright law and there are growing anti-copyright proponent groups, such as we saw in Sweden in 2006 that claim that copyright stifles development and that copyright, like patents (below) should be narrowed greatly in scope or banished altogether for the good of creativity and development. Personally I tend to agree that the majority of the software developments that have lead to my own development creativity have been based on freely available open source software.
Copyright law is a minefield that needs a new basis as it cannot be easily explained to an average high-school child (Litman 2001) and therefore will never have mass respect and adherence. As such copyright law is a tool of those wealthy enough to attempt to enforce it, which disadvantages those who seek to innovate independently.
The use of patents with regards to software is largely by the United States and European states, where the law differs greatly. Patents have to be granted by a patent office, which is different from copyright, or trademarks, which can be stated (trademarks may be registered also).
In the United States software patents are allowed however European law dictates a much more limited scope of possibility in this respect in that any software development must involve an “inventive step” without qualification of this meaning. Under European law it is therefore difficult to see that any software development built on an established development technology (hardware, operating system, programming language, etc.) could be seen as inventive. There have been some claims that “state of the art” developments are inventive, however as this is also not defined it would be difficult to have a patent granted in the first place or, even if this were not the case, it would be costly and time consuming to separate one “state of the art” development from another in a similar field. As a result case law in Europe is often used to decide on how the law applies and this being a relatively new field, few are willing to undertake such actions unless there are serious financial implications. Essentially this excludes all but the wealthiest of corporations from affording this protection in Europe.
As software is a global business the differing patent laws cause serious issues for software vendors for whilst their product may be patent protected in the United States, it may not be possible to obtain such a patent in Europe, leaving their valuable inventions unprotected by this law in those countries; a cause of great strain between the United States and Europe (Adams & McGrindle (2008)).
A Trademark is normally used on a graphic (such as a logo) or a word/phrase to protect brand from being used in the same industry and/or geographical location. Trademarks may be stated e.g. Microsoft™ or registered e.g. Microsoft®. The difference being that ® offers more legal protection in the countries that apply trademark law where the trademark holder has registered, and had approved, their claim.
Generally, although the law differs in countries, a breach of trademark, as decided by a court (i.e. someone or an organisation is found guilty of using a trademark illegally), is punishable by damages in a civil action. If found guilty, the defendant would have to pay an amount of money deemed by the court to represent a fair penalty for using another’s trademark in addition to court costs of the action being taken against them.
In software terms it is not possible to trademark a program or an algorithm but only the brand or name of the product/company for use in any way (see http://en.wikipedia.org/wiki/List_of_trademarked_open_source_software). An area of particular interest for me in this regard is the use of trademarked phrases in search engine optimisation, having been accused of using a competitor’s trademark in a Google AdWords campaign. In this situation we developed a list of target keywords and key phrases for our sponsored links to appear in certain Google searches regarding natural gas service training (NGST). The term “NGST”, a commonly used term in the gas engineering industry, was added as a search term on which to display our advertising offering training courses. Unbeknownst to our company and several other companies operating in the same industry a competitor has setup their operation in the same training industry using this exact term, having marked it as a trademark, and were displeased that their web search results were attracting sponsored links above them in the search results on Google. The trademark holder complained to Google and all the users of this term were required by Google to remove it from their targeted keywords despite Google admitting that the use in keywords was not against the law (IBN Live (2008)), however Google wished to avoid any potential legal action. Our protests fell on deaf ears and Google removed the term “NGST” from our system.
In conclusion, software can be protected by copyright, patents and trademarks however these are only useful in some countries where the law may or may not apply and is open to different interpretation and costly and time consuming processes in establishment and enforcement (or seeking damages for breach). Given that software developers operate in a global environment, this framework is not effective in protection however as case law builds it should move more towards a more global protection system, the timescale of which may be years however.
Adams & McGrindle (2008) Pandora’s Box: Social & Professional Issues of the Information Age. University of Reading: Wiley.
Bellevue Linux (2006) The “Software Piracy” Controversy [Online]. Available at http://www.bellevuelinux.org/software_piracy.html (Accessed 3 Mar 2010).
Burke (et al), (2003) Trinity College Dublin: P2P [Online]. Available at: http://ntrg.cs.tcd.ie/undergrad/4ba2.02-03/Intro.html (Accessed 28 February 2010).
Digital Law Online (2002) Copyrights or Patents? Available at http://digital-law-online.info/lpdi1.0/treatise18.html (Accessed 3 Mar 2010).
European Patents Office (2007) Examination of computer implemented inventions [Online]. Available at http://archive.epo.org/epo/pubs/oj007/11_07/11_5947.pdf (Accessed 3 Mar 2010).
IBN Live (2008) Rosetta Stone Inc Sues Google alleging trademark breach [Online]. Available at http://ibnlive.in.com/news/rosetta-stone-inc-sues-google-alleging-trademark-breach/96988-11.html (Accessed 3 Mar 2010).
Wikipedia: List of trademarked open source software [Online]. Available at http://en.wikipedia.org/wiki/List_of_trademarked_open_source_software (Accessed 3 Mar 2010).