Is Software a Patent Or a Copyright?
Despite the many benefits of a patent, many people still wonder: is software a patent or a copyright? The answer depends on who is claiming ownership. Whether the developer had access to the original work would determine the legality of copyright infringement. However, the best way to enforce copyright protection is to publish your work online and register it with the U.S. Copyright Office. Publication will also make it easier to prove that the developer had access to the original work.
Computer programs are subject to constant innovation and changes
Like many things in life, computer programs undergo continuous innovations and changes. Originally, computers were used to solve mathematical equations, but over the years they have evolved to meet the needs of users and to meet new challenges. Today’s computer is a laptop, and even smart phones use computers. Here are some of the most significant innovations in computer programs over the years. These improvements include:
They are subject to copyright protection
The issue of whether software is subject to copyright protection has reached the Supreme Court of the United States. While this particular court case has been working its way up the court hierarchy for over 10 years, the fundamental issue has been raging for over 40 years. Two companies, Google LLC and Oracle America, Inc., have filed suit, seeking billions of dollars in damages. In the meantime, both companies have argued that they are not infringing copyright, but merely copying another company’s software.
While copyright protection extends for the life of the author (and a portion of the work he or she creates for hire), it does not protect the software from independent development or reproduction. Copyright protection typically lasts for the life of the author (plus fifty years after death), and for 75 years after the work was first published. Infringing on copyright protection may lead to a plethora of legal remedies, including temporary and permanent injunctions, impoundment, destruction, and damages, profits, and attorney’s fees.
Copyright law covers the entire spectrum of software products. While a lot of copyright laws apply to downloadable digital content, software copyright protection applies to computer programs that are fixed to a tangible medium. Generally, software that is not subject to copyright protection is not free to share with others, and the legal system requires that creators register their products with the U.S. Copyright Office. This process is fast and easy and makes it possible to protect any piece of software that is made with the intent of commercial use.
The concept of “transient copies” is vague as far as copyright protection goes, and it is unclear if transient copies include temporary RAM caches or digital content cached while transmitting. However, in some cases, transient copies do exist. Such copies, referred to as “transient copies,” may be protected, but the Ninth Circuit ruled that derivative works must be fixed to infringe upon a copyright claim. In the Apple v. Microsoft case, the Ninth Circuit held that a look and feel copyright claim must prove specific elements of the protected work.
They are protected as works of authorship under the Berne Convention
The Berne Convention protects the rights of authorship over the creation and dissemination of works. This convention contains provisions that stipulate minimum protection of works, ensuring that the creation and dissemination of works by nationals of one Contracting State are protected by other contracting states. The Convention also protects works in the public domain, but does not apply retroactively. The Berne Convention was adopted by the international conference of 1886 in Bern, Switzerland. It was amended in Berlin, 1928 in Rome, Brussels in 1948 and Stockholm in 1967. It is signed by the signatory countries of the Berne Copyright Union. It provides automatic protection for works originating in one of the Signatory States, as well as works of authorship produced by nationals of other Union countries.
In the early 1990s, Professor Ricketson delivered his annual Manges Lecture at Columbia Law School, entitled “People or Machines?” This inquiry has been systematically developed. In the past several decades, technological developments have led to indistinguishability between humans and machines. In this age of artificial intelligence and the proliferation of computers, the human contribution becomes meaningless. Even if it can be traced back to its creator, the creation of software or expert system programs may not satisfy the necessary requirements for Berne Convention recognition.
The duration of copyright protection depends on the country, type of work, and the right in question. In the EU, copyright protection for works lasts for at least 70 years after the author’s death, but this can vary in some countries. In the United States, the copyright for literary works, and the author’s life, plus seventy years after his death, is in effect for life, including retroactively.
There are several types of damages available for copyright violations. In general, statutory damages range from $750 to $30,000 for each work. In certain circumstances, if the infringement was willful, the copyright owner can demand as much as $150,000 for each work. In some cases, the plaintiff may be entitled to additional damages, based on the cost of developing the software, or the costs of modifying it.
They require constant monitoring and a combination of instruments to protect them
The constant evolution of software, and the creation of new technologies, means that software-related inventions are becoming increasingly popular. These inventions can range from machine learning algorithms to mobile applications and open source implementations. As a result, technology transfer offices must decide which instrument is the best to protect these inventions. The most efficient way to protect software-related inventions is through copyright and patent law.
While software offers low-cost market entry, it can also impede technological development and obstruct collaboration. In addition, it can disproportionately impact small businesses. Even with IP assets, these small companies may still face the risk of copycats. In addition, the current variations in national IP laws make software patents and copyrights even more important than ever.