This book sets out in a relatively succinct fashion the principle [sic] sources of legal protection of computer software, that is copyright, database right, patents and confidential information. The book should be of interest to students, lawyers and those active in the computer industry who are seeking a readable and rather comprehensive introduction to this subject.

Computer software is a pervasive phenomenon and of enormous economic importance, as the author makes clear in his introduction:

“Computer software now covers such a wide range of subject-matter which includes computer programs, databases, other works of copyright such as text-based and audio-visual works, online entertainment and computer games. Indeed, it is not too great an overstatement to claim that everything now is software or is capable of conversion into software”.

This development is, however, relatively recent, dating perhaps from the mid 1970s, and has caused certain problems with trying to fit software within the traditional categories of intellectual property:

“Reasons for the difficulty in identifying a single appropriate form of intellectual property right for computer programs are that:

·        Computer programs are unlike other forms of copyright work in that they are dynamic rather than static as is generally the case with copyright works. Computer programs do things, they manipulate symbols and data and cause or control effects including physical effects.

·        Computer programs are intangible and are unlike conventional forms of invention which are typically physical in nature, being a product or a process used to make products”.

The first eight chapters (258 pages) of the book are concerned with copyright protection, including the database right, with a brief look at design right and trade marks. The book starts by looking at the “classic” features of copyright law and then moves on to show how these concepts have been moulded so as to function in the context of the peculiarities of software. The usefulness of this approach is that the reader does not need to be a copyright expert before they open the book as the basics of copyright are explained in a self contained fashion.

The book also maintains a brief and readable style by exiling the highly useful references to the relevant case law to an end note immediately following the text of the relevant paragraph—the following quote is from the section dealing with “Preparatory design material”:

“3.17  If things such as drawings for screen displays have their own copyright in addition to being part of the entire work that is the computer program, this is potentially a very strong form of copyright. If such a drawing is the result of skill and judgment, then anyone copying its associated screen display will infringe the copyright in the drawing as copyright can be infringed indirectly.¹

¹In Navitaire Inc v easyjet Airline Co [2006] RPC 3, Pumfrey J accepted that there was infringement of copyright in graphical user interfaces and icons displayed on the computer screen. He said that the Directive was only concerned with computer programs and did not have any impact on artistic work.”

Chapter 4 of the book deals with important and complex issue of “Non-textual copying of computer programs”. The author gives an interesting comparative study of the rather different approaches taken to this issue in the United States and the United Kingdom. Many questions remain open on this issue and the case law from both sides of the Atlantic is not too illuminating:

“The case law on non-textual copying of computer programs is unsatisfactory. This may be a direct result of: (a) the difficulty of framing with precision what the non-textual elements are, and (b) the apparently intractable distinction between idea and expression … few works of copyright are created in isolation and older works often influence newer works. Creativity would be stifled if this ‘borrowing’ was not permitted. This is the main reason for the exclusion of protection for ideas and principles. The problem is where to draw the line.”

Chapters 9 and 10 of the book deal with patents and their potential to protect computer software—a topical and controversial issue. The author again starts with an introduction to the essential features of the law, this time of patents, and then moves onto the peculiarities of software. For the novice in this field, the first impression is that the whole thing must be very simple as computer programmes [sic] “as such” cannot be patented. It may be the case that in no other field of law has two words given rise to so much controversy and difficulty. This may have something to do with the difficulty of defining something different from a computer programme “as such”—is it a computer programme “not as such”? The author points out the difference as follows:

“10.01 … an application to patent a computer program as such, will be refused on the ground that it is not an invention …

…

10.04 … Where the result of running a computer program is the control of an industrial process such as a bottling plant or converting images into digital form, an application to obtain a patent is likely to succeed in the United Kingdom, at the EPO and in the United States, providing the process is new and inventive”.

The author also makes the sensible, and often overlooked, observation that one of the problems that patent offices (any patent office) has with computer related inventions is the difficulty of carrying out a prior art search:

“The state of the art is immense and a great deal of software has never been patented. Unlike other technologies looking at previous patents and scientific journals does not give anything approaching a reasonable appreciation for the state of the art.”

The author also compares the rather divergent approaches of the United States, the English courts and the European Patent Office regarding computer related patents. This part of the book gives a brief and very useful historical account of how the approach of these courts has changed over time. In this section of the book, the reader can find references to the major cases on patents and software.

In conclusion, this reviewer can heartily recommend this book as it is an excellent introduction for the newcomer and a most useful aide memoire for those already active in the field.

David Rodgers

EIPR Issue 9 [2008]

Click here for more details on this title