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BRITISH copyright law is in the middle of its biggest shake-up for over
30 years. A team of twelve legislators at the Department of Trade and Industry
(DTI) has worked for the past five years to hone the laws which let authors,
artists, inventors and designers protect their work against copying. On
1 August the Copyright, Designs and Patents Act 1988 replaced the Copyright
Act 1956, bringing sweeping changes in the law in an attempt to keep up
with three decades of technological advance. The new act embraces the rise
of the computer industry and a revolution in broadcast and recording technologies.

The new act attempts to clarify the special needs of those who produce
and use computer software. A computer program now enjoys the status of a
‘literary work’ for copyright purposes, and so has protection for 50 years
from the death of its author. The new act studiously avoids defining a ‘computer
program’; the DTI argues that such a definition could become outdated as
technology changes, and it would only restrict the law if fixed in the act.

Programs are now deemed to be owned by their ‘author’, the person who
writes the code, unless that person is employed, perhaps by a software house.
If the author is freelance then they receive copyright unless the person
who commissions them stipulates that the author must give up copyright for
their work. The terms of the act differ from law in the US, where in many
cases a client, often a large financial house or conglomerate, automatically
owns copyright on the software that it commissions. The British software
industry feels this is unfair on small software houses who often want to
re-use expensive pieces of software written for one project on projects
for many different clients.

Britain is fighting this issue with the European Commission, where a
current draft directive suggests that Europe should follow American law.
Doug Eyeions, director general of Britain’s trade organisation for software
houses, the Computing Services Association, hopes that British representatives
can steer the directive towards the spirit of Britain’s act. For the time
being at least, everybody involved should ensure that a contract between
a software writer, employer and client states exactly who will own copyright.

Another copyright issue worrying the software industry is that of rental.
Over the past couple of years software has begun to appear for rental in
shops. Though not illegal, this practice usually contravened the licensing
agreements which accompany software packages, and heralded the beginning
of a rental trade in expensive software, just as people now rent videos.

There was little to stop customers who rented such software from copying
it unlawfully. The new act makes it illegal to rent software without permission
until 50 years after that software was first published. This has quietened
the Federation Against Software Theft (FAST), whose co-ordinator, Bob Hay,
found he could rent valuable business software and desktop publishing packages
in London’s leading electronics shops, with no warning that copying them
would be illegal.

Copying has itself been made more difficult under the new law. The act
stipulates that devices designed to break the codes which software developers
add to their programs to make them difficult to copy will now contravene
copyright. Such devices have flourished over the past year; even last week
shops in London were advertising code-breaking devices with the slogan ‘buy
now before 1 August’. Film companies and companies selling audio tapes can
also now stop the sale of equipment designed to defeat their anti-copy systems.

The act is careful, however, not to make all forms of copying illegal;
simply by running a legitimate piece of software you necessarily create
a copy in the computer’s memory. But if your software has been pirated then
running it, and thereby creating a copy in the computer’s memory, is now
illegal. Until now lawyers have doubted whether it was against the law to
use bootlegged software, or just to create copies.

‘Working copies’ of software are not illegal, so people can still create
their own emergency copies of software, for personal use, unless the licence
that comes with the software prohibits this. But people who transmit programs
electronically, perhaps over a data communications link, will also now be
infringing copyright. This is to prevent software from being sent to electronic
news services for people who use computers, known as bulletin boards, from
which they might easily be copied.

FAST is content with the act as it now stands, but unhappy that the
government ignored its plea that trading standards officers be given power
to take action against illegal software. FAST estimates that the software
industry loses over Pounds sterling 150 million a year through the illegal
sale and use of programs, and has found it hard to interest the police in
acting against this pirate trade.

The act makes no attempt to deal with one important area of software
copyright, that which sits at the heart of the majority of court actions
to date on software theft. This is the so-called ‘look and feel’ issue,
which arises when two software developers produce software which to the
user appears similar, although it may be based on completely different codes.

One example is the graphical interfaces used on computers such as the
Macintosh. Apple, the computer company, developed the display for the Macintosh
personal computer to show only pictures of its various services on the screen;
such as a notebook, rubbish bin or filing cabinet. These interfaces are
the subject of long-running battles in the courts in the US, where other
companies want to sell similar software but insist that their programs violate
nobody’s copyright.

This sort of action has yet to reach British courts, and the act contains
no guidance. It is left to the court to decide whether software uses the
mere idea of another program, which it could allow, or exploits the detailed
expression of that idea, which it could not allow. This is an area of concern
for software developers. Graphical screens, of the type used on the Macintosh
personal computer, could well become the most popular way for people to
‘talk’ to computers, and the software under consideration in the courts
in the US is central to this. If one company succeeds in enforcing copyright
on this form of interface, then it could monopolise what will become a lucrative
market. An equivalent outside the world of computing might be if the people
who first thought of publishing books as a collection of pages were granted
copyright on that form of presentation, with the right to stop anybody else
using the same format.

Another increasingly pertinent issue avoided by the act is that of copyright
of computer databases, large assemblies of information held in computer
memories, such as ¿ìè¶ÌÊÓƵ, not to mention The Times, The Guardian
and The Independent on the Profile database. The act contains no definition
of a computer program so it leaves open the question of whether a database
is a program, and whether it needs protection. This remains unresolved,
but will become the subject of a feverish debate as the subject of a recent
draft directive issued by the European Commission.

Artistic licence

Another key area of the act seeks to tie down the muddle which arose
under the 1956 act when manufacturers claimed artistic copyright in mechanical
products such as spare parts for cars and electrical equipment. The new
law creates an unregistered right for designers which automatically protects
mechanical designs but gives no monopoly to the original designer if a spare
part must be shaped in a special way to match the original.

Drive belts, dust bags for vacuum cleaners, spark plugs and wings for
cars must of necessity be a copy of the original, or they will not fit.
So manufacturers of such parts will now be free to copy them. But where
a part appears to be novel, and does not have to fit the original exactly,
then the first designer now receives copyright protection automatically.
The new unregistered right is free, and lasts for 10 years, but after five
years anyone can demand a licence to make and sell their own parts.

By paying for a design to be registered designers can secure a monopoly
of 25 years on the aesthetic appearance of their work. But patent agents,
who traditionally handle registered designs, are unhappy with the new arrangement.
‘It seems that patent agents are going to have a file evidence, with people
swearing that they care about the aesthetic appearance of a power drill,’
says Jacqueline Needle, of the Chartered Institute of Patent Agents.

The matter of design also applies to trading in counterfeit goods. From
1 August this becomes a ‘serious offence’ with penalties of up to 10 years
in jail. The aim is to hit firms that produce imitation spares, such as
brake shoes or cylinder seals, which soon fail or wear out. The act is carefully
worded to ensure that overzealous customs officials do not jail holiday-makers,
simply because they have bought a phoney Lacoste T-shirt or Gucci handbag
abroad; although holiday-makers who bring back such items by the suitcase-full
can expect trouble.

The act introduces a concept, called moral rights, which is new to law
in the United Kingdom. This lets authors stipulate that they be identified
on their copyright work, and allows them to control editing and changes
that might damage their reputation. On the face of things, this means that
authors can always demand a ‘by-line’ on their published work and can stop
editors from changing the text. In practice, the act excludes text written
for a newspaper, magazine, periodical, encyclopedia, dictionary, year book
or reference work, as well as computer programs (but not their manuals).
Novelists and authors of learned scientific articles, however, are now entitled
to see their name on their work when published, and can object to ‘derogatory’
treatment of their words. This may well limit the extent to which journals
can edit learned text.

People can also now claim copyright of audio and video recordings, for
instance of interviews. It is new for the speakers to have copyright in
their own words, and the BBC and independent radio and television companies
lobbied hard to have this provision watered down. In the extreme, this move
could have stopped them editing interviews before transmission. The act
now excludes recordings of current events for radio or television broadcasts.

The record industry was bitterly disappointed when the government dropped
a provision for a tax on blank tape, to compensate the record companies
for the losses that they claim result from people taping records at home.
The new act also incorporates a ‘time shifting’ provision which makes it
legal for owners of audio and video recorders to record from the radio or
television, as long as this is for personal use.

The software industry’s fight to prevent shops from renting out expensive
software has also made it easier to control the rental of recorded music,
especially discs read by laser, such as compact discs. Under the old law
a shop could hire these out many times and on each occasion the hirer could
copy the disc onto tape. The new law, gives the copyright owner the exclusive
right to authorise rental, for 50 years.

Biotech silence

Biotechnology is another area of technology that has seen dramatic advances
since the law was last updated. In this one, the act is silent. It makes
no attempt to update existing patent law, as laid down in the Patent Act
1977. The British government argues that this law is sufficient to cover
biotechnological advances. The industry disagrees, and says that at least
one important change is necessary. This would be to extend the life of patents
in the biosciences beyond the current 20-year limit. Biotechnologists argue
that it often takes them so long to develop a product, and to have products
approved for use, that the patent becomes worthless by the time the produce
reaches the marketplace.

Currently, 13 countries in Europe, including Britain, have signed the
European Patent Convention. This states that ‘plant and animal varieties’
cannot be patented. Member states in Europe are now debating the draft of
a directive, issued last October, that sets down the principle that living
matter, other than plant or animal varieties, should be patentable.

The draft directive also states that all processes involving human intervention
with biological matter, except conventional breeding activities, should
become patentable. The directive does not propose extending the life of
these patents beyond the 20-year expiry date which governs all patents in
Europe.

The issues surrounding the licensing of life have caused some considerable
disagreement within the Community. The British government has accepted the
main principle of the new directive although other European countries, such
as Denmark and West Germany, will probably reject the idea that life can
be patented.

Last month, in an important test case for biotechnology in Europe, the
European Patent Office (EPO) refused to grant a patent on a ‘transgenic
mouse’, genetically engineered by scientists at Harvard University to produce
cancer tumours. If, on appeal, the EPO eventually grants a patent for the
mouse this could become a precedent for patenting all other new forms of
life. The mouse has already been granted a patent in the US, and Du Pont,
the chemicals company, holds exclusive rights to its exploitation.

So far, this is the only patent of its kind to have been granted in
the US, but 20 or more are thought to be waiting in the wings. These patents
could be extremely valuable. Patents on pigs engineered to produce larger
litters, or to have a stronger resistance to disease, could spawn multi-million-dollar
businesses.

Advances such as those in biotechnology invariably bring with them the
opportunity for inventors and their industrial backers to make money. The
real test of the new act will be how fair it proves to be in dealing with
the technological advances of the next few decades; the shape of some of
these we cannot begin to predict.