Software Copyright

vs
Software Patent
Hak Cipta - Ciptaan
UU No. 28 Tahun 2014
• Hasil karya cipta di bidang ilmu pengetahuan,
seni, dan sastra
• Diekspresikan dalam bentuk nyata.
• Memiliki bentuk yang khas, bersifat pribadi dan
menunjukkan keaslian Contoh:
• Buku, program komputer
• Ceramah, kuliah, pidato dan ciptaan lain yang sejenis dengan itu;
• Lagu atau musik dengan atau tanpa teks;
• Drama atau drama musikal, tari, koreografi, pewayangan dan
pantomim;
Paten
• UU No. 13 Tahun 2016
• Syarat invensi yang dapat diberikan paten:
• Bersifat baru
• Mengandung langkah inventif (jika Invensi
tersebut bagi seseorang yang mempunyai
keahlian tertentu di bidang teknik merupakan
hal yang tidak dapat diduga sebelumnya)
• Dapat diterapkan dalam industri
Ideas vs. Expressions of Ideas
Idea Expression of Ideas Grant
It is literary or It must be expressed (or Copyright
artistic in nature "fixed") in some tangible
medium.
It is functional in it must be expressed in Patent
nature terms of a machine or a
process.
Software as Intellectual Property

“Initially, computer programs were

eligible for neither copyright nor
patent protection

Slide form Benny Mutiara (Universitas Gunadarma)

Software as Intellectual Property
• For Copyright Protection:
• A program's source code consists of symbols.
• Its object code is made up of "executable images" that
run on the computer's hardware after they have been
converted from the original source code.
• So, initially it was not clear is a software is eligible for
copyright protection.
• For Patent Protection
• Software programs resemble algorithms, which, like
mathematical ideas or "mental steps," are not typically
eligible for patent protection.

Slide form Benny Mutiara (Universitas Gunadarma)

Software as Intellectual Property
• In the early 1990s, some argued that the "look
and feel" of software, as well as the software
code itself, should be copyrightable.
• user interface consists of features such as icons
and pull-down menus, should also be protected by
copyright law.
• Programs that have a similar user interface are
referred to as "workalike" programs.
• The source code for these programs may differ
significantly, even thought the user interface tends
to looks very similar.
Slide form Benny Mutiara (Universitas Gunadarma)
Copyright Software – Case 1
• Consider a case where I take someone else’s
program and mechanically substitute new names
for each variable – wherever, say, myvar occurs
it is replaced by varA, and so on with the other
variables.
• Variable names are arbitrary, so the new
program will behave exactly as the old one does,
and it is not an identical copy.
• Would copyright law allow this?
Copyright Software – Case 1
(cont.)
• The literary analogy might be to publish a novel
identical to one of J.K. Rowling’s, except that
“Harry Potter” is changed to “Jimmy Cotter”
throughout, “muggles” are consistently replaced
by “poggles”, and so on.
• British copyright law is clear on this: it protects the
plot of a novel, not just the words, so J.K. Rowling
would win a breach of copyright case.
Analogously, just changing the variable names in a
program would not be a defence against an action
for breach of software copyright.
Copyright Software – Case 2
• While working for firm A, I developed a program
to carry out some task; having moved to firm B I
write a new program from scratch for the same
task, using the same techniques as I remember
them, though without access to my old code.
• (Note that copyright in my old program will
belong to firm A, not to me).
John Richardson Computers Ltd vs.
Flanders (1993)
• Flanders was a programmer who worked for John
Richardson’s company as an employee and later as a
consultant.
• He helped Richardson to write a program allowing
chemists to print prescription labels and keep track of
their stocks of medicines; the program was in assembly
code for the BBC Micro (a popular home and small
business computer of the 1980s).
• After leaving John Richardson Computers, Flanders wrote
a program in QuickBASIC for the IBM PC to execute the
same functions, and he set up a company to market this
program.
John Richardson Computers Ltd vs.
Flanders (1993)
• Richardson’s side argued that it amounted to breach
of copyright.
• There will be no character-by-character similarity
between a Basic program and one in assembly code.
• Any similarity would be at the level of the logic of the
various routines – something that cannot be
compared mechanically, but requires human
understanding to detect.
• But on the whole that was not accepted by the
court  in this case there were only a few minor
infringements.
Copyright Software – Case 3
• Working for firm B, I examine the behaviour of a
software system owned by firm A and write
code to emulate its behaviour, but without
access to the source code from which firm A’s
object code was compiled.
Navitaire vs. EasyJet Airline (2004)
• Navitaire developed a reservation system for
airlines, “OpenRes”, which EasyJet licensed to
use in its business.
• Later, EasyJet wanted to own the software it
relied on, so it commissioned another software
house to develop a system “eRes” to emulate
OpenRes.
• The two sides agreed that “EasyJet wanted a
new system that was substantially
indistinguishable from the OpenRes system … in
respect of its ‘user interface’
Navitaire vs. EasyJet Airline (2004)
• The court decided that eRes did involve some
minor infringements of Navitaire’s copyright, but
the overall weight of the decision went in favour
of EasyJet.
The focus shifts from copyright to patent

• The trend in software cases has been to interpret

copyright as covering little more than character-by-
character copying.
• More recently, patent law has begun to seem more
relevant.
• Patent law does not care whether anything has been
copied or not.
• If A holds a patent on a mechanism or process X, then B
is forbidden to use X (without A’s permission) even if B
really did invent X independently.
• What matters, for patent law, is which of A or B applied
to the Patent Office first.
Software Patent - Case 1
PBS Partnership/controlling pension benefits system (1995)
• The PBS Partnership asked the EPO (European Patent
Office) for a patent on a software system which
calculated pension benefits.
• The EPO refused the claim, because of the nature of the
“inventive step”: since pension benefits can be (and
traditionally were) calculated manually as a purely
clerical activity, the inventive step in this case was
deemed non-technical, hence the claim failed.
Software Patent - Case 2
Fujitsu’s Application (1996)
• In 1996 the English courts upheld a refusal by the UK
patent office to grant a patent on software which
enabled chemists to display and manipulate crystal
structures on screen.
• Part of the reasoning was that what was novel in this
claim was the ability of the user to choose how to
rotate a three-dimensional crystal structure one way or
another, but this act of choice is a human rather than
mechanical activity – one cannot patent “mental
acts”.
Software Patent Case - 3
Microsoft Corp./Data transfer with expanded clipboard
formats (2003)
• The EPO granted Microsoft a patent on a type of
clipboard operation within Windows which allowed data
in one format to be copied into an application that is
based on some other format.
• For instance a graphic copied into a plain ASCII file.
• EPO accepted it because they saw it as a novel technical
process for making data available across applications, and
granted the patent.
Patent for Software
Under USA law:
• Software patents have become wholly normal.
• Before 1998, business methods were unpatentable in
the USA.
• But later, very large numbers of patents are being
granted on business-process software.
Under English law:
• A program or a machine would have been unpatentable
if it only automates business methods (the kind of
processes carried out manually by clerical workers,
rather than technical, industrial processes).
Database as Intellectual Property
• Commercial electronic assets = software +
databases.
• European Union (EU) introduced Database
Directive (intellectual-property protection for
databases) in 1997
• Copyright protection couldn’t be applied to the
database in a case that the database is a purely
mechanical listing of facts without intellectual
content (e.g. a phone directory).
Referensi
• WIPO Publiction, What is Intellectual Property (online).
Available: www.wipo.int/edocs/pubdocs/en/intproperty/450/
wipo_pub_450.pdf.
• Sampson, G., 2009, Law for Computing Students, Geoffrey
Sampson & Ventus Publishing Aps.