– Copyright and Related Rights Act, 2000.
– Patents Act, 1992.
– Copyright and Related Rights Act, 2000 (Certain Provisions) (Commencement) Order, 2007.
Legal effect to the European Community’s Council Directive No. 91/250/EEC on the Legal Protection of Computer Programs was previously implemented into law by S.I. No. 26/93 European Communities Regulations (Legal Protection of Computer Programs) 1993. However, the 1993 Regulations have been repealed by the Copyright and Related Rights Act, 2000, and legal effect to Directive 91/250/EEC has been restated in the Act.
Under the Act, copyright protection is explicitly provided for computer programs as “literary works”. A computer program is defined in the Act as “a program which is original in that it is the author’s own intellectual creation”. The definition includes any design materials used for the preparation of the program. Copyright protection does not extend to the principles or ideas underlying any element of a work.
Computer programs per se are not patentable in terms of the Patents Act, 1992. However, suitably worded claims directed at programmed hardware or to a method of processing data using a computer may be valid in accordance with decisions of the EPO, in particular where there is some technical result.
Conditions of Protection
Registration: there is no registration procedure for copyright.
Ownership: unless copyright has been assigned in writing, the copyright owner is the “author” being defined in the Act as “the person by whom the arrangements necessary for the creation of the work are undertaken”.
Term: seventy years from the death of the author. Where the author is not identifiable or works generated by computer, the term is seventy years from the date the program was first made lawfully available to the public.
Infringement and penalties: copyright in a literary work is infringed by copying the work, by making the work available to the public, by making an adaptation of the work, or by copying, making available to the public or making an adaptation of an adaptation of the work. The aforesaid acts of infringement apply if they are done in relation to the whole of the work or any substantial part of the work, whether the act is undertaken directly or indirectly. Adaptation is defined in the Act as including a “translation, arrangement or other alteration of the computer program”. Translation, in relation to a computer program, is defined in the Act as including “the making of a version of the computer program in which it is converted into or out of a computer language or code or into a different language or code”. Remedies in civil proceedings are: an injunction, delivery up of infringing copies, damages or an account of profits. In a case of “innocent infringement”, damages may be limited to an account of profits. A copyright marking is therefore advisable. In certain circumstances infringing copies, articles or devices may be seized. In criminal proceedings, penalties consist (on summary conviction) of a fine in respect of each infringing copy, or imprisonment for a term not exceeding one year or both and (on indictment) of a fine or imprisonment for a term not exceeding five years or both.
Exclusions: non-infringing acts include “fair dealing” with the work for the purposes of research, private study, criticism or review. In the Act, converting a computer program expressed in a low level computer language into a version expressed in a higher level computer language or copying a computer program in an incidental manner in the course of such a conversion are expressly excluded from the concept of “fair dealing”. A lawful user may make a backup copy of a program. In certain conditions, a lawful user may make a permanent or temporary copy of a program or a part of it (or translate, adapt, arrange or alter the program) in order to achieve the interoperability of an independently created computer program with other programs or where such actions are necessary for the use of the program by the user in accordance with its intended purpose, including error correction. While loading, displaying, running, transmitting or storing a program in an authorized manner, a lawful user may observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program.