To what extent can computer programmes be protected under copyright?

By Sudi Wandabusi

In last of week’s article, I discussed the challenge of protecting domain names under trademark law. Yet another challenge of technological development on traditional intellectual property is in copyright.

The debate of whether and to what extend computer programmes should be protected under copyright law has been going on for a long time.

At an international level, the Word Intellectual Property Organisation (Wipo) started to consider the question of the legal protection of computer programmes in the 1970s, under a sui generis system covering three elements of computer programmes: object code, source code and documentation.

"Source code" is the original code of the computer programme written in programme languages which can be read and understood by human beings, particularly those who are specialised in this field; "object code" is a version of the programme that is directly usable by a computer, in binary form – a series of "zeros" and "ones" – that computer processors may understand, but human beings cannot unless it is "decompiled", that is transformed into source code.

Currently there are two main international instruments that provide for the protection of computer programmes under copyright – the Berne Convention and the Wipo Copyright Treaty.

There are very few voices today that argue against copyright protection of computer programmes. Computer programmes are not "merely" technical solutions, even if software developers are sometimes considered as "outsiders" by other, more traditional creators in the musical or literary fields.

Indeed software itself is not just a technical result, but an author’s creation that has a technical character.

The only difference is the "active" nature of the computer programme, meaning that it has technical (physical) effects in computer hardware during its operation.

Exclusion of software

But this is not a reason for the exclusion of software – as a creative, original expression – from copyright protection. Under our local Copyright Act, computer programmes are protected as a literary work similar to the protection accorded under the Bern Convention.

What is not clear however is to what extend computer programmes are protected under copyright. The Act defines "computer program" as

The question is whether this definition can be extended to include the preliminary material for the creation of a program. Under the Computer Programs Directive of the European Community, computer programmes are defined to include "their preparatory design material". However, considering the definition under the Kenyan law, it cannot be said that preparatory material the way it is understood, is covered by the concept of "computer programme" proper.

This is so since such preparatory material cannot be regarded yet as a set of instructions the purpose of which is to cause a computer to execute a particular task or function; it is only a basis for the creation of such set of instructions in a later stage. It is possible though that such preparatory material also may, and in general do, deserve separate copyright protection, as such, in accordance with the general provisions on literary and artistic works.

Another challenge in copyright protection of computer programmes is whether images generated on screens as a result of the operation of a programme, for instance video games are to be regarded as part of a "computer programme" and therefore accorded protection.

Although our courts yet to be faced by such a situation, it is likely that they will be reluctant to interpret computer programmes as including such images. This because it has been widely held that the images generated by a computer programme in the form of screen display go beyond the concept of computer programs proper.

The concept of "computer programme" under Article 4 of the Wipo Copyright Treaty also does not extend to the images generated by computer programmes on screens. It is generally agreed that such screen displays containing moving images, in the same way as cinematographic works, if they meet the statutory requirements as to their originality, should be able to enjoy copyright protection as audiovisual works under the Act.

It is however interesting to note that we are yet to have any case on the question of copyright in computer programmes being brought in our Kenyan courts.