1. © BPE Solicitors LLP 2012 Software, copyright and IP protection risks Gloucestershire IT Business Network Cheltenham 5 July 2012 Iain Garfield BPE Solicitors LLP

2. © BPE Solicitors LLP 2012 A quick quiz… Inventions can be protected by the law of … patents Brand names and logos can be protected by the law of … trade marks

3. © BPE Solicitors LLP 2012 A quick quiz… Inventions can be protected by the law of … patents Brand names and logos can be protected by the law of … trade marks Unique product designs can be protected by the law of … design right Trade secrets can be protected by the law of … confidentiality Software can be protected by the law of … copyright Technical knowledge … know-how Plant varieties … plant breeders’ rights Circuit boards … semiconductor topography Colours … trade marks

4. © BPE Solicitors LLP 2012 A quick quiz… Colours … trade marks

5. © BPE Solicitors LLP 2012 A quick quiz… Inventions can be protected by the law of … patents Brand names and logos can be protected by the law of … trade marks Unique product designs can be protected by the law of … design right Trade secrets can be protected by the law of … confidentiality Software can be protected by the law of … copyright Technical knowledge … know-how Plant varieties … plant breeders’ rights Circuit boards … semiconductor topography Colours … trade marks Ideas … not subject to IP protection

6. © BPE Solicitors LLP 2012 Copyright Copyright prevents others from making copies of the work of an author… …with certain exemptions. Copyright subsists in the following works: Original literary works Original dramatic, musical or artistic works Sound recordings, films and broadcasts Typographical arrangements of published editions So where does software fit in?

7. © BPE Solicitors LLP 2012 Copyright For copyright to exist in software… It must have been created by a “qualifying person” First published in a “qualifying country” Transmitted from a “qualifying country” Well, that’s ok then… And it must be original It does not need to be inventive or original thought, But must simply originate from the author (ie. not copied) –20 seconds from a four-minute melody –Four lines from Kipling’s “If” –5% of a novel

8. © BPE Solicitors LLP 2012 Copyright And it must be original It does not need to be inventive or original thought, But must simply originate from the author (ie. not copied)

9. © BPE Solicitors LLP 2012 Copyright How about this scenario… Bob writes a brand new computer program on Monday. Sarah reviews it on Tuesday, and adds some extra lines of code. James deletes some of Bob’s original code on Wednesday. Who owns the copyright?

10. © BPE Solicitors LLP 2012 Copyright US Copyright Act 1909 and the Universal Copyright Convention But not required for the Berne Convention Easy…

11. © BPE Solicitors LLP 2012 Infringement Three stage test: Are there any objective similarities? Are the similarities the result of independent creation or copying? If copied, is the copying ‘substantial’? Deliberate or unintentional – copying is copying Seeding And in relation to computer programs … did the alleged copier have access to the original program?

12. © BPE Solicitors LLP 2012 Infringement It is not an infringement if: There is only one way of expressing information Back-up copies Lawful decompilations

13. © BPE Solicitors LLP 2012 Infringement It is not an infringement if: There is only one way of expressing information Back-up copies Lawful decompilations Research Criticism or review Incidental inclusion Damages or an account of profits Injunctions Breach of contract?

14. © BPE Solicitors LLP 2012 Copyright Copyright lasts for… 70 years from the date of the author’s death (in relation to software)

15. © BPE Solicitors LLP 2012 Moral rights Do not overlook moral rights … Right to object to derogatory treatment Right to ID as author False attribution

16. © BPE Solicitors LLP 2012 Copyright Moral rights Look and feel

17. © BPE Solicitors LLP 2012 A salutary lesson

18. © BPE Solicitors LLP 2012 Software and patents Patent Act 1977 – a “program for a computer” is not an invention … but only “to the extent that a patent or application for a patent relates to that thing as such” Fujitsu (1997) An excluded thing can be patentable if it creates a “technical contribution” Macrossan (2007) A system related to a computer program is not patentable But compare that with the approach taken by the European Patent Office (as long as not subsequently revoked in the UK)

19. © BPE Solicitors LLP 2012 So, how to protect your software, website, code, etc… Inventions … patents Brand names and logos … trade marks Unique product designs … design right Trade secrets … confidentiality Software … copyright and database right Technical knowledge … know-how Plant varieties … plant breeders’ rights Circuit boards … semiconductor topography Colours … trade marks Ideas … not subject to IP protection

20. © BPE Solicitors LLP 2012 Thank you – questions? Gloucestershire IT Business Network Cheltenham 5 July 2012 Iain Garfield BPE Solicitors LLP