William A. White March 2003

Copyright protection and reality

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Copyright protection and reality

One final issue must be raised in relation to the aim of copyright – the economic aspect. There are two conflicting views as to the economic purpose of copyright – one, that of Dietz as mentioned above (“[copyright] should grant no more economic power than necessary to the developer”85) and the other as expressed by Microsoft’s recent report of a net profit of $2.55bn for October to December of 200286.

In a capitalist society, it is generally unavoidable that a company should seek to maintain or increase its share of the market and its profit. Failure to do so would be to increase the risk of dropping out of the market. However, as mentioned at the beginning of this article, software piracy is becoming an ever-increasing challenge, and software companies now face an uncertain future87, as a recent paper88 published for Microsoft makes clear89. Encryption mechanisms are being routinely circumvented and software being made available via the Internet before it even enters the market.
In addition to this, a considerable volume of open source and otherwise freely available software of professional quality is being made available by programmers around the world. The “free software” movement provides licensing conditions somewhat more favourable to consumers than most commercial models90 and has been dubbed a “threat” 91 to software companies.
The result is that there is increasing pressure on commercial companies to reconsider their business strategy if they are to remain in the market. Whether the reduction of prices and the resulting short term decreases in profit are an adequate manner of tackling the situation remains to be seen, but it has certainly been suggested that this will be necessary92. There may indeed therefore be a shift towards Dietz’s model of economic purpose, albeit an involuntary one. The question therefore arises as to whether copyright will also change to reflect current reality93 – a law which cannot be upheld has questionable status94.


This article has examined various areas of copyright in computer software in the United Kingdom, highlighting the major points of protection and infringement. Various judgments issued by courts in the United States, establishing key principles in this field, have been considered. It has been shown that many of the underlying factors in such judgments are doctrinally unsound and disregard the differences between software and the “traditional recipients” of copyright protection, and it is argued that copyright should be limited to literal elements of program code.

Commissioner John Hersey has suggested that copyright protection of computer software is wholly inappropriate on the grounds that software is merely “a machine control element”95, but, whether this is true or not, given the place that software copyright now holds in the world economy, it seems unlikely that it will cease to subsist any point in the foreseeable future. However, it also seems unlikely that it will continue to yield such profit it has yielded in the past, and without some major technological advance prohibiting the use of pirated programs, business and pricing models must be expected to change if companies are to remain in the market96.
Ironically, the areas least affected by the increasing illegitimate availability of software are the non-literal program elements. It may be easier to gain access to software in order to reverse engineer it, but the substantial effort required to do so and to write a program which is not literally the same remains as it has always been. It seems likely, therefore, that copyright in these areas is likely to endure – it is, however, not justified.


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