The trend is strongly toward express statutory protection for software in copyright laws around the world. Statutory protection has become increasingly important because more software is mass-marketed through traditional channels or distributed from a website without a signed license agreement (although in many instances with a "clickwrap" license agreement). In many countries, courts have held software to be within the subject matter protection of existing copyright law. Generally, copyright laws protect the form of expression of an idea, but not the idea itself. With respect to software, this typically means that the computer program, in both human-readable and machine-executable form, and the related manuals are eligible for copyright protection, but the methods and algorithms within a program are not protected expression. Source code and object code are protected against literal copying. In addition, certain nonliteral elements of expression (including the structure, sequence, organization and "look and feel" of a program) have sometimes been afforded protection under U.S. copyright law. This trend has not clearly surfaced in foreign courts. Therefore, the current scope of protection of software under U.S. law is, at least in this respect, probably broader than under any foreign law.
A common requirement of copyright laws is that a work be original. Originality means that a work has been created independently and is the personal expression of the author. This factor must be distinguished from the concept of novelty, which usually is not required. Proof of originality is assisted in some jurisdictions by registration of a work with specified regulatory authorities. Independent development is a defense to a claim of copyright infringement or trade secret misappropriation, but not to a claim of patent infringement.
The exclusive rights of a copyright holder that are recognized and protected by most copyright laws are the rights to reproduce or copy, adapt (i.e., prepare derivative works), distribute and publicly perform the work. The precise nature of these rights, however, often differs among countries. The exclusive right to display is not generally recognized outside the United States, except to the extent that it may be covered by the moral right of disclosure (discussed below).
A number of countries, and the EU Software Directive as well, also recognize "moral rights," which may include the right to be known as the author of the work (right of paternity), the right to prevent others from distorting the work (right of integrity), the right to control publication of the work (right of disclosure) and the right to withdraw, modify or disavow a work after it has been published (right of withdrawal). Moral rights protection reflects the view that the individual, not only the work, is to be protected. The scope of these rights varies among the countries that protect moral rights of authors. The Berne Convention recognizes only the first two moral rights above.
In most such jurisdictions, agreements to waive or transfer moral rights are not enforceable. In those countries where moral rights are protected, such rights may restrict the transferee of the software (such as the party who commissioned the work) from making changes to the software without the express consent of the original author.
Berne Convention countries provide for copyright protection without stipulating the observance of any formalities. Some countries (such as the United States prior to the effective date of its Berne membership on March 1, 1989, and some Latin American countries), however, require a copyright notice on published works. This notice is necessary on published works under the Universal Copyright Convention. Additionally, a deposit of all or portions of the work and/or registration is required by some jurisdictions in order to secure protection or prior to bringing a lawsuit for copyright infringement. Even if registration is not stipulated to obtain or enforce protection, it may provide important evidentiary benefits.
In certain countries where formalities must be observed in order to obtain protection, they apply only upon publication. As indicated below, the country where first publication occurs is often important in determining whether works of foreign authors will be granted copyright protection.
Copyright laws operate territorially. They usually provide protection only for a country's nationals or for works first published in the country. Conventions and bilateral agreements address the availability of protection for foreign authors and grant protection to foreign authors under the principles of national treatment or formal reciprocity. In general, under the principle of national treatment, which is the principle underlying the primary international copyright treaties, a country will grant the same protection to works of foreign authors as it grants to works of its own nationals. Similarly, under the principle of formal reciprocity, which is the principle underlying many bilateral agreements, a country will grant the same protection to works of authors from another country as it grants to works of its own nationals, but only if a country determines that the works of its own nationals are granted some minimum degree of protection in the other country.
The most significant international treaties relating to copyright protection are the Berne Convention, the Universal Copyright Convention and certain provisions of the TRIPS (Trade- Related Aspects of Intellectual Property Rights) Agreement. The United States is a member of the Berne Convention and the Universal Copyright Convention and, as a member of the World Trade Organization (WTO), is bound by the TRIPS Agreement (as well as other agreements administered by the WTO). The United States also has bilateral arrangements with several countries that do not belong to any copyright convention.
The United States is a member of the Universal Copyright Convention (UCC). Under the UCC's national treatment provisions, software created by a U.S. author or first published in the United States is protected in other UCC member countries to the extent that the member country's copyright laws protect software. The UCC provides that any member country that requires, as a condition of copyright protection, compliance with formalities (such as registration, deposit or notice) must treat such formalities as satisfied if all published copies of a work bear the symbol "©," the name of the copyright proprietor and the year of first publication. This provision applies, however, only to works that (i) were first published outside the country requiring the observance of the formalities, and (ii) were not authored by one of that country's nationals. In contrast to Berne, formalities such as registration are permitted under the UCC in order to bring an infringement suit.
A current list of UCC member countries is available at http://erc.unesco.org/cp/convention.asp?KO=15381&language=E (1952) and http://erc.unesco.org/cp/convention.asp?KO=15241&language=E (1971).
The Berne Convention contains a more far-reaching regulation of copyright than does the UCC. Berne members constitute a union that is open to all countries of the world, provided that certain minimum protective requirements are satisfied. These requirements include: (i) national treatment (whether or not a work is published), (ii) the granting of certain moral rights to authors with regard to the exploitation of their works, (iii) the granting of certain "economic rights" (such as exclusive rights of translation, reproduction, performance or adaptation with respect to protected works) and (iv) the adoption of certain minimum terms of protection (generally the life of the author plus 50 years) for various works. In addition, Berne provides copyright protection without requiring that any formalities, e.g., prerequisites to bringing infringement suits, be observed. Berne does not prevent a country from providing evidentiary benefits as an incentive to registration, such as in the United States. Some commentators interpret Berne as prohibiting the waiver or assignment of the "moral rights" of the author. As a practical matter, however, national law appears to govern whether "moral rights" may be totally waived, may be transferred or are applicable to a particular type of work such as software.
The United States became a member of Berne on March 1, 1989. Until then, U.S. authors could indirectly obtain protection under this treaty if first publication took place in a member country or simultaneously in a member and a nonmember country. "First publication" has different meanings, both strict and liberal, among countries. While the United States ratified the most recent version of Berne, some other countries have ratified earlier versions only. In addition, those who agree to assent to Berne under the auspices of entering the WTO need not implement the moral rights provisions of Berne.
The United States became a member of Berne on March 1, 1989. Until then, U.S. authors could indirectly obtain protection under this treaty if first publication took place in a member country or simultaneously in a member and a nonmember country. "First publication" has different meanings, both strict and liberal, among countries. While the United States ratified the most recent version of Berne, some other countries have ratified earlier versions only. In addition, those who agree to assent to Berne under the auspices of entering the WTO need not implement the moral rights provisions of Berne.
A current list of Berne member countries is available on the WIPO Web site.
The WIPO Copyright Treaty of 1996 is a special agreement to the Berne Convention and requires compliance with Berne. This treaty makes explicit that computer programs are protected as literary works under Berne. It also states that compilations of data for which the selection or arrangement of the contents are sufficiently original are protected as compilations. Software makers are granted a right to control rentals of computer programs. One of the most software-oriented provisions requires treaty nations to provide adequate and effective protection against the circumvention of technical measures that restrict the ability of others to exercise the rights owned by the copyright owner.
A current list of countries that have ratified this treaty is available on the WIPO Web site.
Among the countries where subject matter protection exists for software, there are substantial differences in the laws and regulations governing protection. For example, the author of a "U.S. origin" work who desires to file suit for copyright infringement in the United States must first register the work with the U.S. Copyright Office. Most other countries do not require that their nationals take such action prior to filing copyright infringement actions. In some countries, registration provides certain evidentiary benefits. In Japan, for example, the legal effect of one type of optional registration is to create a rebuttable presumption that the program was created on the date declared in the application, but a program must be registered within six months of its creation. In Venezuela, unless a U.S. author has already registered its software in the U.S. Copyright Office, when the author seeks to register its copyright in Venezuela (which one might do to prove originality for purposes of possible litigation in Venezuela), the author must also file assignments from each person who worked on the software.
