Software Protection Ensured

SOFTWARE PROTECTION-ENSURED SOFTWARE PROTECTION-ENSURED ? By Ahmad Farooq Malik Barrister-at-Law Advocate High Court Lahore Pakistan inherited most of its Intellectual Property Laws, like most of the other procedural and substantive laws applicable here from the British. The idea and concept of Intellectual Property (IP) is not an alien one.1 It is however been felt that the pace at which technology in general has bettered the same cannot be said for the laws which, give adequate protection and security to the IP producers, manufacturers and originators and even the ultimate users of the technology. This is a moot point; With the rapid technological advancement and the birth of the Internet, much transformation has been experienced socially, culturally and economically. It is indeed correct to say that the world has become a 'global village' especially after the advent of the Internet and its subsequent advancement and common use. A detailed analysis of the various kinds of Intellectual Properties and the protection granted to them by the relevant laws is beyond the scope of this article. The discussion below will emphasize solely upon the protection and security that the law gives to a computer software manufacturer. In a nutshell, one of the main manor concerns of a computer software manufacturer or provider of services similar to that in Pakistan or outside is to secure its products and services offered via a computer or the Internet. This is akin to anyone wanting to secure his intellectual property, such as a trade name, a distinctive mark used for the trade, a logo, a slogan, a book, a poem, a formula, an electronic mechanism, an integrated design etc. All of these are products of intellect and attain economic or monetary value just like a car or a house. In fact in most of the cases, the intellectual property is of far more worth than a house or a car. Having said that, value of intellectual property, mostly in the eyes of a lay person is extremely minimal and there is a failure to appreciate the wealth that is behind it. 1. Lever Brothers Port Sunlight Limited v. The Basra Soap Factory at P.L.D. 1955 Sindh 445. In the context of our discussion, it is but simple to understand why a software manufacturer is concerned with getting its intellectual property secured from any prospects of being stolen i.e. unauthorisedly copied, sold and used. It is of course, again the economic reason and in most of the cases, a question of protecting reputation and goodwill of the manufacturer as well. Computer software is protected by and large by the Copyright laws.2 However, fulfilling the prerequisites of obtaining a registration certificate from the Copyright Board, as in Pakistan acts unfortunately as a deterrent rather than a facilitator. The main reason for this is the requirement of disclosure of the software to the Copyright Board. The reason for the disclosure is quite logical as requesting for a document (the copyright registration certificate) to establish and authenticate ones proprietorship over a property without disclosing that particular property would be anomalous. Needless, to say that absence of such a requirement will in most probability lead to false claims. This leads the software manufacturer to a 'damn if I do, damn if I don't' situation. PATENTING SOFTWARE:-- Any possible patent applications for the software like in the USA would be in most probability met with more objections, let alone the confusion that it will create. Having said that, it would inevitably boil down to the Courts to interpret the patent law so as to either invite softwares as novel products or reject such claims. It is a task which is difficult, especially in absence of any precedents belonging to the sub-continent3 but by no means an unachievable one. To put it in another way, if the American Courts can realize, appreciate and acknowledge the fast growing need of security and protection to intellectual property i.e. softwares through their Patent Laws, than so can Pakistani Courts. It is just a matter of time and someone endeavouring for it till there is clarity. The argument of Courts taking up the interpretation of the patent law so as to include or not include within its security softwares, is with respect to the Pakistan Intellectual Property Rights Organisation (PIPRO), 2. Section 2(p) Copyright Ordinance, 1962. However, obtaining patents on computer software has been approved and allowed subject to various qualifications in the USA. However, in general it can be said that in addition to the protection under the US Copyright Law, the American Courts have given a green signal to patenting computer software. 3. ibid. as there is an element of assumption that PIPRO will not be willing to accept and allow patent applications in the field of softwares. It is reiterated with respect that the chances of non acceptance are higher. COPYRIGHTING SOFTWARE:-- In absence of any specific law dealing with registration of software as intellectual property, we have to contend ourselves with the Copyright Ordinance of 1962 as amended by Copyright Ordinance of 2000 read with the relevant rules. A copyright certificate in the eyes of law is per se a significant proof of ownership of the IP.4 Nevertheless on a more lay basis a computer software manufacturer would feel more secured and satisfied if it is validated and certified to be the owner of the software by the Copyright Board through issuing a certificate to that effect. On the other hand, the apprehension of disclosing necessary and more pertinently trade secrets is something which a computer software manufacturer will not be ready to accept and fulfil, as a requirement of the law. An alternative or modified method and procedure should be proposed and implemented in this respect so as to facilitate the genuine concerns of the software manufacturers and at the same time strict compliance of the copyright laws and registration procedures. PROCESS OF REGISTRATION:- The process of registration in truest of the sense should entail the disclosure of the complete works to the Copyright Board in order to obtain the Copyright Registration Certificate. However, it is to be noted that the said requirement is not a stringent one as an application can be accompanied by hard copies of the codes, printed visual representations of the software and an explanation of the functions of the software, which will suffice for the purposes of registration. Complete disclosure is not necessary. Any amount of documentation, in support of the application, which would give a general idea about the functions of the software, will suffice. However, it is to be noted that copyright law will protect copying of the content 4. Although the law laid down by the Superior Courts in the cases reported as 2005 CLD 1546 Messrs ADT Services Ag and another v. Messrs ADT Pakistan (Pvt.) Ltd. and 4 others and 2003 CLD 1052 Messrs Ferozesons (Pvt.) Ltd. v. Dr. Col. Retd. K.U. Kureshi and others does not make it mandatory to obtain a copyright certificate in order to claim proprietorship, as the principle and formula of the 'first author' is used to establish ownership. of the software and will be based on the principles of protecting the expression and not the idea. This is the grey area where independent inventions and reverse engineering is not protected under the copyright law. On the other hand, patents provide strong protection in that they prevent against independent invention, and against reverse engineering. Copyright protection protects against copying, but "clean room" techniques can be used to circumvent copyright protection. Such a technique involves one team that decompiles software and prepares flowcharts or a description of how the software functions. A separate team, which is not provided access to the code, prepares independent code based on the flowcharts or description. Copyright protection also does not protect against independent creation. A patent is not subject to a defence of independent development. Anyone making, using, or selling a patented computer program is an infringer even though they had no knowledge of the computer program. Having said that it has been argued that certain types of programs, such as those which are designed and intended to control the computer and e which do not directly produce visual images of expressions that the user of the computer can see, are not entitled to copy right protection, as such programs constitute an idea, procedure, system or method of operation that would constitute an exception to copyright. However, this line of thought has been dismissed and it has been affirmed that essentially all computer programs are intended to operate the machine in such a way as to ultimately produce some useful communication to the user. It is therefore difficult to appreciate how they can be classified into separate categories, based on whether they directly generate that communication or whether they are responsible for the machine functions that eventually result in that expression.5 A better and more securing mechanism at the local level is needed in terms of protecting the IP emanating from the owner. Current procedural requirements are not sufficient and as said earlier are actually a deterrent rather than a facilitator. PROPOSALS:- PATENTING:-- Although there are enough guidelines and precedents especially from the US jurisdiction, nevertheless it perhaps is too early for Pakistan to adopt such a progressive step towards ensuring software protection. Only if PIPRO or the Courts are willing to interpret the law in such a manner to include software under the patent law, than more security can be ensured. 5. Apple Computer, Inc. v. Formula International Inc. 562 F SUPP 775 (CD CAL 1983). COPYRIGHT:- Copyright protection is created automatically when software is fixed in a tangible medium. There are additional benefits to registering a copyright. Namely, a registration is necessary to bring a suit, and it may be possible to obtain damages. Copyright in computer code will cover screens generated by the code even if printouts of the screens are not submitted to the Copyright Office: The Copyright Office will typically examine screens, if submitted, for copyrightability. If a copyright application for a computer program containing trade secrets is to be filed, there are arguably various deposit possibilities from which one may choose:-- 1. file the first twenty five and last twenty five pages of source code with portions containing trade secrets blocked out; 2. file the first ten and last ten pages of source code alone, with no blocked out portions; 3. file the first twenty five and last twenty five pages of object code plus any ten or more consecutive pages of source code, with no blocked out portion; or 4. for programs fifty pages or less in length, file the entire source code with trade secret portions blocked out. The ideas is that enough information should be provided to the Copyright Board so as to prove copying, while giving away as little trade secret information as possible. It is difficult to say if any of the above options is preferable over another. The risk of supplying source code to the Copyright Office is that a skilled programmer may be able to figure out the program, and may even be able to code the software in a sufficiently different manner so as to avoid copyright infringement. It is strongly recommended that some red herrings should be included in the code to assist in proving wholesale copying. For example, some code should be included that does nothing other than an unnecessary loop, or code that can never be reached and processed by the computer. An important issue regarding copyright law is that of ownership. Although not always practical, it is legally preferable that only employees write any code. Employees should be subject to employment agreements in which they agree to maintain in confidence any trade secrets or know-how. If any independent consultants are used to write code, agreements should be put in place in which they agree to transfer all ownership in any copyrightable work they create to the Employers.6 Non-disclosure Agreements should be drafted in such a manner so as to cover all possible undesired outcomes in the future. In addition to the above, icons, if sufficiently unique, may be capable of a trademark registration. The process of registration with the Copyright Board needs to be simplified for computer software. Perhaps the disclosure part can be either circumvented to what has been stated above or alternatively it is suggested that any requirement of a complete disclosure can be made only once in person by the copyright owner to the Examiner at the final stage of registration. ENFORCEMENT:- Although the availability of legal protection for software has increased rapidly around the world over the past fifteen years, the scope and the feasibility of enforcement of that protection continues to vary significantly by country. The use of the Special 301 provisions of the 1988 U.S. Trade Act has resulted in greater protection for software, as well as other intellectual property, in several countries. The Business Software Alliance and the Software and Information Industry Association have been effective forces for monitoring software piracy around the world, promoting legislative and attitudinal changes and taking legal actions to enforce copyright protection. The Berne Convention, the NAFTA provisions and the establishment of the World Trade Organization (as a successor to the GATT), which fosters the protection of intellectual property rights through the TRIPS Agreement, were important milestones in the use of multilateral agreements for dealing with protection for software. These multilateral efforts are intended to promote adequate and effective protection of intellectual property rights while ensuring that national laws enforcing such rights do not themselves become barriers to 6. Section 13(c) Copyright Ordinance, 2000. trade. In most countries, the only meaningful remedy is to seek an order to stop or enjoin further infringing activities, with only limited prospects for collecting damages.7 A list of a few countries with the laws relating to protection of computer software in specific is as follows:- 1. Albania Law on Copyright No. 7564, May, 1992, as amended by Law No. 7923, April, 1995, by Law No. 8594, April, 2000, and by Law No. 8630, July, 2000. 2. Argentina Amendment (Law No. 25.036 of November 11, 1998) to the Copyright Act of 1933' 3. Armenia Copyright Law of 2000. 4. Azerbaijan Law No. 438, "On Copyrights and Related Rights," October, 1996. 5. Belarus Law on Copyrights and Related Rights, August 11, 1998. 6. Belize Copyright Act (CAP. 252 of the Substantive Laws of Belize) 2000. 7. Bolivia Copyright Law (Law No.1322), 1992 as supplemented by certain software-related regulations, April 25, 1997. 8. Bosnia & Herzegovina Law on Copyright and Related Rights, October 24, 2002. 9. Brazil Software Law (Law No. 9,609), effective February 20, 1998, and the Copyright Law (Law No., 9,610), effective June 20, 1998. 10. Brunei Darussalam The Emergency (Copyright) Order 1999, enacted on May 1, 2000. 11. Chile Intellectual Property Law No. 17,366, dated October 2, 1970, amended 1992. 12. Costa Rica Copyright Law (No. 6683 of October 1, 1982), amended May, 1994. 13. Cyprus 1976 Copyright Act, amendment January 1, 1994. 14. Czech Republic Law No. 121/2000 Coll. of April 7, 2000 on Copyright, Rights Related to Copyright. 15. Dominican Republic Copyright. Law, October 24, 2000 - 7. www.softwareprotection.com 16. Ecuador Law on Intellectual Property (Law No. 83), May 19, 1998. 17. Egypt Intellectual Property Rights Code, effective June 3, 2002. 18. Georgia Law on Copyright and Neighbouring Rights, June, 1999. 19. Guatemala Law on Copyright and Related Rights, Law No. 33-98, June 1998, as amended by Decree No. 56-2000 of November, 2000. 20. Iceland Amendment (Act No. 145) 1996 to the Copyright Act of 1972. 21. Kazakhstan Law on Copyright and Neighboring Rights, June 12, 1996. 22. Kuwait Decree Law No. 64/1999, February 9, 2000. 23. Kyrgyzstan Law on Copyright and Related Rights, January 22, 1998. 24. Lebanon Copyright Law, June 14, 1999. 25. Liechtenstein Copyright and Neighboring Rights (Copyright Law), May 19, 1999. 26. Lithuania Law on Copyright and Related Rights No. VIII-1185, May, 1999, as amended by Law No. VIII-1886 of July, 2000 and Law No. IX-1355 of March, 2003. 27. Luxembourg Law on Copyright, Related Rights and Databases of April 18, 2001, as amended by the Law of April 18, 2004, effective May 3, 2004. 28. Macau (Decree Law No. 43/99/M), October 1, 1999. 29. Macedonia Law on Copyright and Related Rights No. 47/96, September, 1996 and No. 3/98, January, 1998. 30. Moldova Law on Copyright and Related Rights, May 3, 1995. 31. Oman Law for the Protection of Copyright and Neighboring Rights" (Law No. 37/2000), May 21, 2000. 32. Panama Copyright Law (Law No. 15), January 1, 1995. 33. Peru Copyright Law-Ley de Derechos de Autor (Legislative Decree No. 822), May 24, 1996. 34. Qatar Qatar Copyright Law, October 3, 2002. 35. Romania Copyright Law, June 24, 1996. 36. Saudi Arabia Copyright Law, March 14, 2004. 37. Serbia and Montenegro Law on Copyright and Related Rights (2004). 38. Slovakia Copyright Act (No. 383/1997), December 5, 1997. 39. Tajikistan Law on Copyright and Neighboring Rights, December 17, 1998. 40. Turkey Copyright Law 1995, Amendments to the 1951 law. 41. Ukraine Law on Copyright and Neighboring Rights, February 23, 1994. 42. United Arab Emirates Copyright Law, Federal Law No. 7 of 2002. 43. Uzbekistan Law on Copyright and Neighboring Rights, September 17, 1996. 44. Vietnam Under the Bilateral Copyright Agreement between the United States and Vietnam, effective December 23, 1998, Vietnam agreed to provide copyright protection, on a national treatment basis, to works (including computer software) of U.S. authors that are first published in either country. PATENT a. European Patent Convention: Subject-matter protection is available based on the EPO's application of the technical effects doctrine if an application is filed in the EPO rather than in the individual member country. Vicom Systems Applications, T208/84, 2 EPOR 74, EPO Appeal Board (1987). b. Argentina: A computer program, as such, is not patentable subject-matter. A leading Argentine case states that if a process is patentable in itself, the use of a computer means in its performance does not affect its patentability. Thus, when software is described as a means and the device is also claimed, that invention is patentable. (IBM v. La Nacion Argentina s/Deregatoria, September, 1974). c. Eurasian Patent Convention: As in the European Patent Convention, the provisions of the Furasian Patent Convention do not recognize algorithms and computer programs, as such, as patentable subject-matter. However, because the European Patent Organization assisted in the preparation of the Eurasian Patent Convention, these provisions of the Eurasian Patent Convention are likely to be interpreted similarly to the corresponding provisions of the European Patent Convention. However, there is no case-law yet that would confirm such an interpretation. d. Australia: CCOM v. Jiejing, 122 ALR-417 (1994), interpreting the Australian Patent Act, as amended April 30, 1991. e. Belize: Protection may be granted to a patent granted by the U.K patent office or the EPO designating the United Kingdom. f. Brazil: Inventions involving the use of computer software may be patentable provided they are of technical character (new and utilizable by industry). For example, if computer software is used to control a machine, a patent may be available for the machine. (Brazil Law #9279 (May 14, 1996), effective May 15, 1997). g. China (PRC): Inventions involving the use of computer software may be patentable in the PRC, even if the software concerned forms the major part of the invention, as a technical solution relating to a product, process or improvement. h. Dominican Republic: Provided one confirms a non-Dominican Republic software patent (e.g., by registering a U.S. patent). i. Hong Kong: A June 27, 1997 patent ordinance provides protection provided that one registers a patent granted by the UK Patent Office, by the EPO designating the United Kingdom, or by the Chinese Patent Office. j. India: India's Patents (Second Amendment) Act, which took effect July 11, 2002, excludes, among other things, a mathematical or business method, a computer program per se and algorithms from patentability. Many commentators believe that the inclusion of the per se language after computer program brings India's patent law more in line with the technical effects doctrine promulgated by the EPO. k. Norway: Norway has reconciled its national patent law with the European Patent Convention even though it is not a member. l. Panama: The Industrial Property Law that came into effect on November 15, 1996 states that patents shall not he granted for software programs per se. m. Philippines: Section 22.2 of the Philippines office Manual of Substantive Procedure states: A computer program claimed by itself or as a record on a carrier, is not patentable irrespective of its content. The situation is not normally changed when the computer program is loaded into a known computer. If, however, the subject-matter as claimed makes a technical contribution to the known art, patentability should not be denied merely on the ground that a computer program is involved in its implementation. It follows also that, where the claimed subject-matter is concerned only with the program-controlled internal working of a known computer, the subject-matter could be patentable f it provides a technical effect. n. Poland A computer program, as such, is not patentable subject matter. o. Serbia & Montenegro: Implementation of computer software in technical processes is patentable. p. Singapore: Singapore patent regulations allow for a Singapore patent application to proceed to grant by conforming the specification of the Singapore application to that of the corresponding granted U.S. patent and using the granted U.S. patent as prima fade evidence of patentability. q. South Africa South Africa patent law prohibits the patentability of computer programs as such. It is thus believed that the patent law does not prevent the patenting of software-related inventions so long as they are claimed as methods or as a hardware adapted to perform particular functions. r. Thailand: The Thai Patent Office is currently studying the issue of software patentability. However, a commentator for the International Association for the Protection of Intellectual Property believes that a software-related invention will be considered patentable subject-matter. In Pakistan, the available laws for the protection of rights in the intellectual property vis- -vis softwares cover both remedial steps under the civil and criminal laws. For starters the Copyright Ordinance of 1962 as amended by the 2000 Ordinance8 lays out various checks and measures which can be adopted to secure IP. The issue at hand is the true and real 8. Sections 56, 58, 60A, 61, 62, 63, 65A, 66, 66A, 66B, 66C. 66D, 66E, 67, 68, 69, 70, 70A, 70B, 71, 73, 74 & 74A. enforcement of these measures as granted by the law. It would not be completely true to say that the law is fancier and stronger in books as compared to being in force. Serious minded IP owners do go to all legal lengths to enforce and protect their rights and are often successful in doing so. Pakistan may not have the best of the systems to enforce laws, IP or otherwise, but it takes more than two to tango, and any slackness on account of the IP owner itself is often seen to be one of the significant factor leading to delays and unexpected results and no plausible solutions. The Copyright Ordinance in all possible ways grants several rights upon the IP owner and many probable methods and remedies which can be used to secure rights. Since the law cannot grant any right or remedy which is unachievable, therefore the blame game perhaps engulfs the unwillingness of the investigating authorities, unnecessary lenient attitude of the adjudicators, slackness of the lawyers, and last but not least the fizzling out of the interest and force which a commercial organization usually starts with enforcing its rights. By just having a glance over some of the provisions of the law, it is obvious that there are various remedial options that can be explored keeping in mind the specific facts of the case. For example Section 60A of the Ordinance states: Special Remedies for infringement of Copyright: (1) Where copyright in any work has been infringed and the owner of the copyright is unable to institute regular proceedings for sufficient cause, the owner or any other person having any interest in the copyright in the work may apply to the court for immediate provisional orders to prevent infringement of the copyright in such work and for preservation of any evidence relating to such infringement notwithstanding that regular proceedings in the form of a suit or other civil proceedings have not yet been instituted by the owner (2) The court may pass any interim orders envisaged in subsection (1) without prior notice to the defendant, if the court is satisfied that the applicant has some interest in copyright in the work and the right of the applicant is likely to be infringed, affected or prejudiced and any delay in passing such orders is likely to cause irreparable harm to the applicant or where there is a reasonable risk of evidence, either being destroyed, hidden or removed from the jurisdiction of the court or otherwise there is likelihood of frustration of the intended proceedings if immediate action could not be instituted or there is likelihood of multiplicity of proceedings in the absence of such orders Section 66A of the Ordinance states: Offences of infringement of copyright or other rights conferred by this Ordinance: Any person who knowingly infringes or abets the infringement of:-- (a) the copyright in a work ---------------------------------- shall be punishable with imprisonment which may extend to three years, or with fine which ,may extend to one hundred thousand rupees or with both. Section 73 of the Ordinance states: Power of the Court to dispose of infringing copies, plates or recording equipment for purposes of making infringing copies: The court before which any offence under this Ordinance is tried may, whether the alleged offender is convicted or not, order that all copies of the work or all plates or recording equipment in the possession of the alleged offender, which appear to it to be infringing copies or plates or recording equipment for the purpose of infringing copies, be destroyed or delivered to the owner of the copyright or otherwise dealt with as the court may think fit. Section 74 of the Ordinance states: Powers of police to seize infringing copies (plates and recording equipment): (1) Any police officer, seize without warrant all copies of the work and all plates and recording equipments used for the purposes of making infringed copies of the work, wherever found----------- (3) All offences under this Ordinance shall be cognizable and non-bailable. In addition to the above, the provisions of Electronic Transactions Ordinance, 20029also arguably come to the aid of a software manufacturer. Having said the above, there is a dire need for realization of the importance and value of IP both in the executive and the judiciary. The intangible characteristic of the property diminishes its worth and any violation of the same is still considered to be condonable. The various factors which lead to 9. Sections 36, 37 and 38. a complete or partial failure for enforcing IP rights in softwares or otherwise may be summarized as follows:-- 1. Mental Psyche of the infringer (cashing on the skill and labour of others for making a 'quick buck' without any personal effort); 2. Ignorance and unwillingness of the investigating authorities (incapability of comprehending the infringement in an IT related property and perceiving violation of IP rights as non-serious matters); 3. Undue leniency towards infringers and unwillingness on part of the adjudicators to learn and give due importance to the IP rights (comparison can be made with the Judiciary of USA and UK which have written several landmark judgments with detailed analysis of the technological advancement and rights so vested in there); 4. Lack of knowledge and slackness on part of the lawyers in dealing with IP related issues; and 5. Slackness and unwillingness of the commercial enterprises (IP owners) in enforcing or pursuing their rights. CONCLUSION:-- Software is valuable and must be appropriately protected. Patents provide the strongest form of intellectual property protection, and protect against reverse engineering and independent creation. New guidelines issued by the U.S. Patent and Trademark Office make it easier to obtain patents on software related inventions. These should be given appropriate value for the purposes of guidance at the local level. A whole new arena is out there to be explored for the benefit of IP owners, of course, subject to their risk and cost. Trademark registrations provide a cost effective way to protect software worldwide. Icons may be protected by trademark registrations. Copyright protection can exist in addition to patent protection. Copyright registration also provides important advantages and is easier to understand and adopt. The enforcement measures laid out in our laws are sufficient for the time being. However, they need to be implemented in their truest sense and should not be left to just look at and read from the statute book. Legislation without its effective enforcement undermines and severely retards the growth of any potential economic growth amongst others.