As today marks the start of the Brexit process, it is worth reflecting on intellectual property opportunities that may arise in the coming years. One such is that of redefining the legal definition of, and rights given to, computer programs.
Currently, computer programs, for the purpose of granting legal protection, are defined as literary works under sections 3(1)(b) and (c) of the Copyright, Designs and Patents Act 1988 (CDPA).
There are three notable problems with this; firstly that this classification is imprecise and unclear, secondly, it gives computer programs an excessively lengthy protection period, and thirdly, as so many parties are responsible for creating a program, it has become increasingly problematic to consider ownership rights.
Legal definitions of computer programs have been murky and long-winded. The Software Directive 2009/24/EC definition fails in its lack of exactness and the World Intellectual Property Organisation, although recognising the difference between source code (the code written by people) and the object code (the machine readable version of the source code), still does not provide a definitive answer, calling them mere “instructions”. As EU laws are put under scrutiny, new sovereign legislation may be able to provide a more precise and up to date definition for both practical and academic use.
Article 10 (1) of the Agreement on Trade Related Aspects of Intellectual Property Rights makes it clear progams should be considered as literary works. Increasingly, very little about a computer program is “literary”, as automation and development of software through artificial intelligence (AI) are used to create a program. Such work would therefore likely fail to meet the test for intellectual creativity and minimum effort requirements needed for copyright protection. The law has yet to consider the issue of self-writing code, and Brexit may provide the necessary jolt to consider how to keep up with the times.
Creators of computer programs receive copyright protection for 70 years from the end of the calendar year of their death; this length benefitting all literary works. The pace at which programs are developed and subsequently become redundant is quick, and such a lengthy protection period does not benefit innovation.
Even the 50-year rule under section 12(7) of the CDPA, which will become increasingly relevant with automation and AI, is excessively long, and future draftsman should look to minimise this in the name of competition.
As programs have become ever more complex, ownership of rights has become contentious. Consider video games, which have code, as well as graphics, sound effects, music and screen displays to name a few. Whilst publishers may wish to claim all rights, each element of the program was developed by a different person or entity which may try to claim ownership under the CDPA.
In the context of work, the CDPA requires a watertight employment contract setting out the express rights of employees, as under sections 11(1) and (2), the rights of first ownership differ greatly.
Whilst copyright reform will not be the foremost issue at the negotiating table, we can expect to see a raft of new legal definitions and applications as all legislation is considered post Brexit.