View source for Software copyright

{{Short description|Concept of copyright applied to computer code}}
'''Software copyright''' is the application of [[copyright]] in [[law]] to [[Machine-readable medium|machine-readable]] [[software]]. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to [[software]].

Software copyright is used by [[Software Developers|software developers]] and [[proprietary software]] companies to prevent the [[Copyright infringement|unauthorized copying]] of their software. [[Free license|Free]] and [[open source license]]s also rely on copyright law<!-- Do not add a wikilink for "copyright law"; it is a redirect to "copyright" which is already linked here, just one paragraph above --> to enforce their terms. For instance, [[copyleft]] licenses impose a duty on [[Licensee|licensees]] to share their modifications to the work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in the [[public domain]].

==National and supranational laws==
===Canada===
In [[Canada]], software is protected as a [[literary work]] under the [[Copyright Act of Canada]]. Copyright is acquired automatically when an [[Originality|original work]] is generated; the creator is not required to register or mark the work with the [[copyright symbol]] in order to be protected.<ref>{{cite web |url=http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03320.html |title=Do I need to mark my work with the copyright symbol? - Canadian Intellectual Property Office |access-date=2012-12-13 |url-status=dead |archive-url=https://web.archive.org/web/20130513205119/http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03320.html |archive-date=2013-05-13 }}</ref> The rights holder is granted: the exclusive [https://www.bitlaw.com/copyright/scope.html#:~:text=The%20reproduction%20right%20is%20perhaps,or%20copies%20of%20the%20work.&text=It%20is%20not%20necessary%20that,the%20reproduction%20right%20to%20occur. right of reproduction], the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of [[Fair dealing#Canada|Fair Dealing]]; these exempt users from copyright liability covering usage and reproduction when performed for [[research]], private study, [[education]], [[parody]] or [[satire]].<ref>{{cite web | url=http://laws-lois.justice.gc.ca/eng/acts/c-42/page-18.html | title=Consolidated federal laws of canada, Copyright Act | date=July 2020 }}</ref> Changes to the Copyright Act in regard to digital copyright were debated in the Canadian Parliament in 2008. [[Bill C-61 (39th Canadian Parliament, 2nd Session)|Bill C-61]] proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, [[reverse engineering]] and [[security testing]].
===China===
{{excerpt|Software copyright in China}}
===East Germany===
A 1979 [[East Germany|East German]] court ruling found that software was "neither a [[scientific work]] nor a creative achievement" and ineligible for copyright protection, legalizing software copying in the country.<ref name="gießler20181121">{{Cite news |url=https://www.zeit.de/digital/games/2018-11/computer-games-gdr-stasi-surveillance-gamer-crowd/komplettansicht |title=Video Games In East Germany: The Stasi Played Along |last=Gießler |first=Denis |date=2018-11-21 |work=Die Zeit |access-date=2018-11-30 |language=de}}</ref>

===European Union===
{{Main article|Computer Programs Directive}}

===India===
Software can be copyrighted in [[India]].<ref>{{cite web|url=http://www.linuxinsider.com/story/50421.html |title=Linux News: Tech Buzz: Only in America? Copyright Law Key to Global Free Software Model |publisher=Linuxinsider.com |access-date=2011-10-29}}</ref> Copyright in software, in the absence of any agreement to the contrary, vests in the [[author]] of the software, even for commissioned works. Copyright can be assigned or licensed through a written document, but under the [[Indian Copyright Act]], in case the period of assignment is not specified, the period is deemed to be 5 years from the date of assignment (section 19(5) of the Copyright Act). In a recent judgement in the case of [[Pine Labs|Pine Labs Private Limited]] v. [[Gemalto|Gemalto Terminals India Private Limited]]<ref>{{cite web |url=http://lobis.nic.in/dhc/AKS/judgement/01-10-2011/AKS03082011FAOOS6352009.pdf |title=Judgment in the case of Pine Labs Private Limited vs Gemalto Terminals India Private Limited and others (FAO 635 of 2009 and FAO 636 of 2009) |publisher=lobis.nic.in |date=2011-08-03 |access-date=2011-10-29 |url-status=dead |archive-url=https://web.archive.org/web/20120201004419/http://lobis.nic.in/dhc/AKS/judgement/01-10-2011/AKS03082011FAOOS6352009.pdf |archive-date=2012-02-01 }}</ref> the [[Delhi]] High Court has laid down that the copyright belongs to the author (in this case, Pine Labs) and as the period of assignment was not specified in the document of assignment (the [[master service agreement]]), the copyright in the software reverted to Pine Labs after 5 years. See [[Assignment of copyright in software under Indian Copyright Act|Assignment of Copyright in Software]].

===Pakistan===
Under the provision of [[Copyright_law_of_Pakistan#Copyright_Ordinance,_1962|Copyright Ordinance 1962]], works which fall into any of the following categories: [[Literature|literary]], musical, or [[Art|artistic]] are protected by Copyright law. The definition of literary work was amended by Copyright Amendment 1992 to include computer software. Section 2(p) of the ordinance defines a [[computer program]] as "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information".<ref>{{citation | url=http://www.pakistanlaw.com/copysoft.htm | title=COPYRIGHT FOR COMPUTER PROGRAMMES IN PAKISTAN }}</ref> In event of infringement, civil and/or criminal proceedings can be carried out. According to Chapter XIV of Copyright Ordinance, a person can face a prison of up to 3 years and/or a penalty of up to one hundred thousand [[Rupee|rupees]] if he is found guilty of [[renting]] computer software without permission of the owner.<ref>{{citation | url=http://ipo.gov.pk/Copyright/Downloads/Copyright_Ordinance_1962__update.pdf | title=The Copyright Ordinance of Pakistan 1962, Chapter XIV | url-status=dead | archive-url=https://web.archive.org/web/20140629215551/http://ipo.gov.pk/Copyright/Downloads/Copyright_Ordinance_1962__update.pdf | archive-date=2014-06-29 }}</ref> According to a study of [[Business Software Alliance]], 84% of software in Pakistan is being used in violation of the [[Copyright law of Pakistan]].<ref>{{citation | url=http://globalstudy.bsa.org/2007/studies/summaryfindings_globalstudy07.pdf | title=Global Study of Business Software Alliance}}</ref>

===United States===
Copyright protection attaches to “[[Originality|original works]] of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others.  Copyright protects:

* [[Literature|literary]] works
* [[Music|musical]] works (& accompanying words)
* [[Drama|dramatic]] works (& accompanying music)
* [[Pantomime|pantomimes]] and choreographed works
* [[pictorial]], graphic, & [[Sculpture|sculptural]] works
* [[motion pictures]] & other [[audiovisual]] works
* [[Sound recording and reproduction|sound recordings]]
* [[Architecture|architectural]] works
+ compilations and derivative works{{snd}} 17 USC § 103(a).

In the United States, computer programs are literary works, under the definition in the Copyright Act:

{{quote
|text=“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
|source={{UnitedStatesCode|17|101}}
}}

The legal definition of "literary work" extends beyond the common-sense meaning of the term ([[literature]] such as ''[[For Whom the Bell Tolls]]'') and includes any work expressed as a sequence of words, numbers, or symbols, particularly the [[source code|source]] or [[object code]] of computer programs.<ref name="apple_v_franklin">{{Cite court|url=http://digital-law-online.info/cases/219PQ113.htm |litigants=[[Apple Computer, Inc. v. Franklin Computer Corp.|Apple Computer, Inc. v. Franklin Computer Corporation]] |vol=714 |reporter=F.2d |opinion=1240 |court=3d Cir. |date=1983}}</ref>

There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for [[Computer program|computer programs]] prohibits not only literal copying, but also copying of "nonliteral elements", such as program's [[structure, sequence and organization]].  These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves."<ref name="altai">Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)</ref> In ''[[Computer Associates International, Inc. v. Altai, Inc.|Computer Associates v. Altai]]'' (1992), the [[United States Court of Appeals for the Second Circuit|Second Circuit]] proposed the [[Abstraction-Filtration-Comparison test]] for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely [[Utilitarian design|utilitarian]] and the public domain.

Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101.  [[United States circuit court|Circuits]] differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.<ref name="stern_v_kaufman">Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982)</ref>
The set of operations available through the interface is not copyrightable in the United States under ''[[Lotus v. Borland]]'', but it can be protected with a [[patent|utility patent]]. The law is unclear as to whether transient copies{{snd}} such as those cached when transmitting digital content, or temporary copies in a computer's [[Random-access memory|RAM]]{{snd}} are “fixed” for the purposes of copyright law.<ref>17 U.S.C. § 101. Compare Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2nd Cir. 2008).</ref>  The [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]] has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.”<ref>Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992).</ref>  In ''[[Apple v. Microsoft]]'', the courts established that a [[look and feel]] copyright claim must demonstrate that specific elements of a user interface infringe on another work.  A program's particular combination of user interface elements is not copyrightable.

==== History ====
Historically, [[Computer programs and the Patent Cooperation Treaty|computer programs]] were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: [[object code]] was viewed as a utilitarian good produced from [[source code]] rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The [[United States Copyright Office]] attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code.<ref name="sail_book">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34</ref> This analogy caused the Copyright Office to issue copyright certificates under its [[rule of doubt]].

In 1974, the Commission on New Technological Uses of Copyrighted Works ([[CONTU]]) was established. CONTU decided that "computer programs, to the extent that they embody an author's original [[Creative work|creation]], are proper subject matter of copyright."<ref name="digitalcommons.law.ggu.edu">[http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1344&context=ggulrev Apple Computer, Inc. v. Franklin Computer Corporation Puts the Byte Back into Copyright Protection for Computer Programs] in Golden Gate University Law Review Volume 14, Issue 2, Article 3 by Jan L. Nussbaum (January 1984)</ref><ref name="sail_book"/> In 1980, the United States Congress added the definition of "computer program" to {{UnitedStatesCode|17|101}} and amended {{UnitedStatesCode|17|117}} to allow the owner of the program to make another copy or adaptation for use on a computer.<ref name="sail_book2">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 35</ref>

This [[legislation]], plus court decisions such as ''[[Apple v. Franklin]]'' in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via the [[doctrine of first sale]] (see ''[[Step-Saver Data Systems, Inc. v. Wyse Technology]]''). These [[software license agreement]]s are often labeled as end-user license agreements ([[EULA]]s). Another impact of the decision was the rise of the [[Shrink wrap contract|shrink-wrap]] [[closed source]] business model, where before a [[source code]] driven software distribution schema dominated.<ref name="digitalcommons.law.ggu.edu"/><ref name="landley2009">{{cite web|url=http://landley.net/notes-2009.html |first=Rob |last=Landley |publisher=landley.net |access-date=2015-12-02 |date=2009-05-23 |quote=''So if [[Open-source software|open source]] used to be the norm back in the 1960s and 70s, how did this _change_? Where did [[proprietary software]] come from, and when, and how? How did [[Richard Stallman]]'s little utopia at the [[MIT AI lab]] crumble and force him out into the wilderness to try to rebuild it? Two things changed in the early 80s: the exponentially growing installed base of microcomputer hardware reached critical mass around 1980, and a legal decision altered copyright law to cover binaries in 1983.'' |title=notes-2009}}</ref>

Still elusive was the exact boundary between the copyrightable expression and the unprotectable elements&mdash;ideas, procedures, processes, etc.&mdash;in computer programs. In ''[[Whelan v. Jaslow|Whelan Associates v. Jaslow Dental Laboratory]]'' (1986), the [[Third Circuit]] held that a program's [[structure, sequence and organization]] (SSO) was part of its copyrighted expression, since the general idea of a computer program's purpose "could be accomplished in a number of different ways with a number of different structures." However, this decision has been criticized for "conceiving of programs as having only one abstract idea each,"<ref name="samuelson-102">{{cite journal |url=https://people.ischool.berkeley.edu/~pam/papers/102_b_%20dr4.pdf |last=Samuelson |first=Pamela |author-link=Pamela Samuelson |title=Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection |journal=Texas Law Review |volume=85 |issue=1 |date=2007 }}</ref>{{rp|47}} even though "more complex, detailed, and functional information innovations" such as procedures, processes, and systems are also excluded from copyright protection under {{USCSub|17|102|b}}.<ref name="samuelson-102"/>{{rp|31}}

In 1998, the United States Congress passed the [[Digital Millennium Copyright Act]] (DMCA) which criminalizes evasion of copy protection ([[Digital Millennium Copyright Act#Anti-circumvention exemptions|with certain exceptions]]), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. In addition, the [[Digital Millennium Copyright Act|DMCA]] extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."{{UnitedStatesCode|17|117}}

====EULAs and rights of end users====
The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder.  In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes.<ref name="sect117">{{UnitedStatesCode|17|117}}</ref> Furthermore, "owners of copies" have the right to resell their copies, under the [[first sale doctrine]] and {{UnitedStatesCode|17|109}}.

These rights only apply to "owners of copies."  Most software vendors claim that their products are "licensed, not sold",<ref name="doweownsteamgames">{{cite web|url=http://www.rockpapershotgun.com/2012/02/01/thought-do-we-own-our-steam-games/ |title=Thought: Do We Own Our Steam Games? |publisher=[[Rock, Paper, Shotgun]] |first=John |last=Walker |date=2012-02-01 |access-date=2014-12-27 |quote=I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally[...]"}}</ref> thus sidestepping {{UnitedStatesCode|17|117}}.  American courts have taken varying approaches when confronted with these [[software license agreement]]s. In  ''[[MAI Systems Corp. v. Peak Computer, Inc.]]'', ''[[Triad Systems Corp. v. Southeastern Express Co.]]'', and ''Microsoft v Harmony'',<ref name="ms_v_harmony">Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994)</ref> various Federal courts held that "licensed, not sold" language in an [[End-user license agreement|EULA]] was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".<ref name="vernor_v_autodesk">[http://www.citizen.org/documents/vernororder.pdf Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).]</ref>  The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in  [[Microsoft Corp. v. DAK Industries, Inc.]]<ref name="ms_v_dak">Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995)</ref>

By contrast, in the [[European Union]] the [[European Court of Justice]] held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on [[first sale doctrine|first sale]] as ownership is transferred, and questions therefore the "licensed, not sold" [[End-user license agreement|EULAs]] in the EU.<ref>{{cite web|url=http://www.gamerlaw.co.uk/2012/the-legality-of-second-hand-software-sales-in-the-eu/ |title=The legality of second hand software sales in the EU |first=Jas |last=Purewal |publisher=gamerlaw.co.uk}} ([https://www.gamedeveloper.com/view/news/173538 mirror] on [[gamasutra.com]])</ref><ref>{{cite web|url=http://www.dw.de/dw/article/0,,16069323,00.html |title=Oracle loses court fight over software resale rules |quote=''A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.'' |date=2012-07-03 |access-date=2014-12-30 |author=hg/mz (AFP, dpa) |publisher=[[dw.de]]}}</ref><ref name="ecjforbes">{{cite web|url=https://www.forbes.com/sites/gregvoakes/2012/07/03/european-courts-rule-in-favor-of-consumers-reselling-downloaded-games/ |work=[[forbes.com]] |first=Greg |last=Voakes |title=European Courts Rule In Favor Of Consumers Reselling Downloaded Games |date=2012-07-03 |access-date=2014-12-30 |quote=''Could this be the victory we need for a “gamer’s bill of rights” ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their ‘used’ game.''}}</ref><ref>{{cite web|url=http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=en |title=JUDGMENT OF THE COURT (Grand Chamber) |date=2012-07-03 |quote=(Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer) |publisher=InfoCuria – Case-law of the Court of Justice |access-date=2014-12-30}}</ref><ref>{{cite web|url=https://arstechnica.com/tech-policy/2012/07/top-eu-court-upholds-right-to-resell-downloaded-software/|title=Top EU court upholds right to resell downloaded software |author=Timothy B. Lee |date=2012-07-03 |publisher=[[Ars Technica]]}}</ref><ref>{{cite web|url=https://abcnews.go.com/Technology/wireStory/eu-court-oks-resale-software-licenses-16704351 |title=EU Court OKs Resale of Software Licenses |publisher=AP}}</ref>

====Fair use====
[[Fair use]] is a defense to an allegation of [[copyright infringement]] under section 107 of the [[Copyright Act of 1976]]. This section describes some of the uses of copyrighted software that courts have held to be fair.

In ''[[Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.|Galoob v. Nintendo]]'', the [[9th Circuit]] held that modification of copyrighted software for personal use was fair. In ''[[Sega v. Accolade]]'', the 9th Circuit held that making copies in the course of [[reverse engineering]] is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access".

The [[Supreme Court of the United States|Supreme Court]] ruled in ''[[Google LLC v. Oracle America, Inc.]]'' (2021) that the reuse of [[application programming interfaces]] (APIs) including representative [[source code]] can be transformative and fall within fair use, though did not rule if such APIs are copyrightable.<ref>{{cite web | url = https://www.cnn.com/2021/04/05/tech/google-oracle-supreme-court-ruling/index.html | title = Supreme Court hands Google a victory in a multibillion-dollar case against Oracle | first = Brian | last = Fung |date = April 5, 2021 | accessdate = April 5, 2021 | publisher = [[CNN]] }}</ref>

====Copyleft====
{{Main article|Copyleft}}
A [[copyleft]] is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.<ref>{{cite web| url=http://www.fsf.org/licensing/essays/categories.html|title= Categories of free and nonfree software|publisher= www.gnu.org|access-date= 2011-10-29}}</ref><ref>{{cite web| url= http://www.fsf.org/licensing/essays/copyleft.html|title= What is copyleft? | publisher = www.gnu.org|access-date= 2011-10-29}}</ref>

== International laws ==

=== Berne Convention and WIPO Copyright treaty ===
Computer programs and other types of software, including mobile apps, are protected as literary works for copyright purposes.<ref name=":1">{{Cite web |title=IP and Software |url=https://www.wipo.int/web/wipo-magazine/articles/ip-and-software-36545 |access-date=2025-03-05 |website=www.wipo.int |language=en-US |publication-date=December 10, 2008}}</ref> Copyright protection is formality-free in countries party to the [[Berne Convention]], which means that protection does not depend on compliance with any formalities such as registration or deposit of copies.<ref name=":0">{{Cite web |last=World Intellectual Property Organization |title=Copyright Protection of Computer Software |url=https://www.wipo.int/en/web/copyright/activities/software |access-date=2025-03-05 |website=www.wipo.int |language=en-US}}</ref>

This inclusion of software in the wording of article 2 of Berne Convention is supported by the [[WIPO Copyright Treaty]]:<ref name=":1" />

{{Quotation|text="Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression."|title=WIPO Copyright Treaty (WCT)|source=Article 4.<ref>{{Cite web |title=WIPO Copyright Treaty (WCT) |url=https://www.wipo.int/wipolex/en/text/295166#P58_5861 |access-date=2025-03-05 |website=WIPO Lex}}</ref>}}
A patent is generally granted after completing an examination procedure by a government agency. Copyright protection of computer software is established in most countries and harmonized by international treaties to that effect.<ref name=":0" />

==See also==
* [[Copyright infringement of software]]
* [[Free software licence|Free software license]]
* [[End-user license agreement|Software license agreement]]
* [[Software patent]]
* [[Copyright on typefaces]]

==References==
{{Reflist|30em}}

{{Authority control}}

{{DEFAULTSORT:Software Copyright}}
[[Category:Copyright law]]
[[Category:Software law]]