Computer Programs and Copyright: More Exceptions to Infringement

The breadth of copyright protection for computer programs is potentially very generous, extending to program structure, screen displays and preparatory materials,' but this has been significantly compromised by the Copyright (Computer Programs) Regulations 1992 which came into force on 1 January 1993. The Regulations were made in order to ensure that the United Kingdom complied with the European Community Directive on the legal protection of computer programs,2 and they make some far reaching amendments to the Copyright, Designs and Patents Act 1988 as it applies to computer programs. The nature of copyright protection creates a danger that rights in computer programs could be open to abuse and detract from the establishment of standards which is itself seen as an important goal. Unlike other original works of copyright, there is a need for computer programs to be able to interact and interoperate with each other and, failing the safeguards against abuse of right that are well established in patent law, it was seen as desirable that special provision be made to permit certain acts to be done to facilitate the interoperability of computer programs.3 Otherwise, the owner of the copyright subsisting in a computer program that had become established as the market leader could control the market either by asking extortionate royalties from other software producers who wished to make interoperable programs or refusing to grant licences in respect of the interface aspects of his program. The two primary purposes of the Directive were to provide an effective means of protecting computer programs and to harmonise the copyright protection of computer programs throughout the Member States. However, so far as the United Kingdom is concerned, since we already had strong copyright protection in place, the Directive and the Regulations have the effect of considerably weakening the ability of the copyright owner to protect his computer program, or certain aspects of it, by means of copyright law and contract law. A further concern for the computer industry is whether the Regulations fully reflect the Directive's provisions. Certainty is perceived by the industry as very important, as the period leading up to the Copyright (Computer Software) Amendment Act 1985 amply demonstrates.4 There is some doubt as to how effectively the Regulations implement the Directive and this can do nothing but detract from the goal of encouraging investment in the development of new and innovative computer programs. Add to this the difficulty in reconciling European Community Directives with inconsistent domestic legislation,5 and it can be seen that the resultant uncertainties do not help the computer