1

TUMAINI UNIVERSITY
IRINGA UNIVERSITY COLLEGE
FACULTY OF LAW

MASTERS OF LAWS IN INFORMATION AND
COMMUNICATION TECHNOLOGY LAW (LL.M - ICT LAW)



RESEARCH ON


COPYRIGHT DOES NOT PROTECT IDEAS, ONLY THE EXPRESSION OF
IDEAS HAS PROVED REMARKABLY ILL-ADAPTED TO RESOLVING
ISSUES OF NON-LITERAL INFRINGEMENT OF COPYRIGHT IN
COMPUTER PROGRAMS IN BOTH THE US AND UK COURTS. IT IS
HIGH TIME TO ABANDON THE ATTEMPT TO FORCE SOFTWARE INTO
THE COPYRIGHT MOULD AND TO CREATE A NEW RIGHT FOR
PROGRAMS WHICH REWARDS AND PROTECTS INTERNAL AND
EXTERNAL FUNCTIONAL ASPECTS OF PROGRAMMING.

BY

REHEMA E. Y. UROKI



SUPERVISOR: Mr. PHILLIP FILIKUNJOMBE


MARCH, 2013

2013

2

ABSTRACT
The world wide revolution and expansion of societal use of the internet and social media is
giving rise to new laws and potential liabilities in cyberspace due to the expansion, growth and
development of information and communication technology (ICT). Under the intellectual
property context, copyright protects expression of the ideas and not ideas itself. Not only authors
and inventors are protected with copyright and patent laws respectively, but both copyright and
patent law are applicable and used to the protection of software. One form of protection is
arguably more better than the other and there are strong debates on these two forms of
protection of software up todate. Software is widespread, affecting almost every aspect of human
life in all parts of the world since long time. This study will provide the explanation, each side
offers as to the respective superiority of intellectual property protection under patent laws and
copyright laws and clearly show the existence that new technologies are challenging bright line
separations between the two forms of protection under the intellectual property. There is a need
of having standpoint of which is the better way to protect software program, either by copyright,
patent law or both, or better to have protection of software by Sui generis which will cover
software programs, and to create a new rights for programs which will reward and protects
internal and external functional aspects of programming.


3

1.0 INTRODUCTION
The development of copyright protection for computer software has recently entered a "second
generation."
1
In the context of rapid developments in computer technology and computer
software markets, the centre of the discussion has now shifted to a"second generation" issue: to
what extent non-literal aspects of computer software are protected under copyright.
2
Many
current legal issues pertaining to copyright of computer software involve defining the scope of
protection of non-literal expression, such as "user interface" and "look and feel," in contrast to
literal expression, such as "source code," to which ownership may be more clearly attributed.
3

This discussion paper will cater for the definitions of some important terms from intellectual
property, Copyright law, contention that the maxim copyright does not protects ideas, only their
expression, computer program and its protection under copyright, at both UK and US.

1
Edward Samuels, 'The Idea-Expression Dichotomy in Copyright Law," 56 TENN. L. REv. 321, 355-366 (1989) for a
categorization of the developments of computer software cases. See also Menell, "An Analysis of the Scope of
Copyright Protection for Application Programs," 41 STAN. L. REV. 1045, 1048 (1989).
2
There is an uncertainty in the definitions of "look and feel" and "user interface." "Look and feel" is generally
defined as "a set of functional capabilities of a programmed computer and the way it 'interacts' with a user."
Steven Lundberg, et al., The Copyright/Patent Interface: Why Utilitarian "Look and Feel" is Uncopyrightable Subject
Matter, 6 COMPUTER LAW. 5 (Jan. 1989). Likewise, "user interface" generally refers to "all of the devices by which
the human user can interact with the computer in order to accomplish the tasks of the computer program." Joseph
T. Verdesca, Copyrighting the User Interface: Too Much Protection?, 45 Sw. LJ. 1047, 1047 n.4 (1991). Some
commentators and courts have used the "user interface" and "look and feel" of computer software
interchangeably. See, e.g., Alan S. Middleton, A Thousand Clones: The Scope of Copyright Protection in the "Look
and Feel" of Computer Programs, 63 WASH. L. REV. 195, 195 & n.2 (1988); Lotus Development Corp. v. Paperback
Software International, 740 F. Supp. 37, 63 (D.Mass. 1990). But one commentator states that the majority of
scholars differentiate between "look and feel" and "user interface," understanding that "user interface" is one
element of "look and feel." Brian Johnson, An Analysis of the Copyrightability of the "Look and Feel" of a Computer
Program: Lotus v. Paperback Software, 52 OHIO ST. LJ. 947, 953-61 (1991).
3
Yutaka Nakamurat, Recent developments in Copyright Protection for Computer Software in the United States and
Japan, 1993; Pg. 1

4

Following with the argument that; is software copyrightable or patentable?. Finally, will be the
conclusion, and recommendation for the problem of protection of software.
1.1 Definition of terms
The phrase intellectual property (IP) refers to the bundle of legal rights that arise from the
creative genius of the human mind. Intellectual property refers to the property right conferred by
law to protect basically the creations of the intellect. The nature of intellectual property is to
encourage fair competition.
4

Copyright; the right to copy, granted privilege protecting the printers' investment,
5
it is the legal
protection given to certain types of original works and includes a wide range of creations,
including books, articles, posters, manuals, diagrams, figures and graphs, as well as CDs, DVDs,
software, databases and websites. It gives the copyright owner exclusive rights to control the
copying and dissemination of their works and can be a very valuable asset. Copyright gives the
copyright owner a number of exclusive rights, such as the right to copy, perform or communicate
their work to the public.
6


4
By Thomas L. Peterson; How Intellectual Property Works, HowStuffWorks Inc. 1998-2013
5
Tumaini University, Iringa University College Students. Used by permission. Posted to the Universitys, Local
Area Network (LAN) by Laltaika E.I. July 23, 2006, Oxford University Press IJL&IT 2004.12(178)
6
McMaster Industry Liaison Office, Hamilton, Ontario L8S4L8, 905-525-9140: 2000-2013

5

Trade mark is defined under section 2 of the Trade and Service Mark Act
7
as any visible sign
used or proposed to be used upon, in connection with or in relation to goods or services for the
purpose of distinguishing in the course of trade or business the goods or services of a person
from those of another. A trade mark as a sign which distinguishes particular goods or services
particular to one undertaking from the goods or services of other undertakings.
8

Patent law is a specific area of law that encompasses the legal regulation, jurisprudence, and
enforcement of specific intellectual property rights known as patent rights. A patent is a
government issued right granted to individuals or groups that protects their original inventions
from being made, used, or sold by others without their permission for a set period of time.
2.0 COPYRIGHT LAW
Tracing its origins from eighteenth century England,'
9
copyright protection is a form of limited
monopoly granted by the government to authors of original intellectual works.
10
Copyright
protection has been extended to a broad range of "works of authorship," including some aspects
of computer programs, it is a fundamental tenet of copyright law, first expressed in Baker v.
Selden,"
11
that only an author's original expression of an idea is protected; an idea itself may not
be copyrighted. Thus, if he were alive today, Shakespeare might copyright his particular

7
Cap 326 RE 2002
8
David Kitchin et al, Kerlys Law of Trade Marks and Trade Names (14th ed. 2005) 10.
9
Statute of Anne, 8 Anne ch. 19 (1710) (Eng.).
10
U.S. CoNsT. art. I, 8, cl. 8.
11
101 U.S. 99 (1879).

6

expression of the idea of a tragic hero's rise and fall (example, the text of Hamlet), but he could
not copyright the idea of a tragic hero's rise and fall itself. This notion is referred to as the
idea/expression dichotomy.
12
Furthermore, copyright does not protect purely "utilitarian" works.
That is, one may not obtain a copyright in a work, such as a desk, whose only value is that it
serves some useful function-this is the essence of the utilitarian/non-utilitarian dichotomy.' The
idea/expression and utilitarian/non-utilitarian dichotomies are central elements of copyright
doctrine. Both are codified today at
13
, which provides that copyright does not protect "an idea,
procedure, process, system, method operation, principle, or discovery."
14

An important variant on the idea/expression dichotomy is known as the "merger" doctrine, which
holds that where there are only a small number of ways to express a particular idea, copyright
protection does not apply. Morrissey v. Procter & Gamble Co.
15
, in such circumstances it does
not seem accurate to say that any particular form of expression comes from the subject matter.
However, it is necessary to say that the subject matter would be appropriated by permitting the
copyrighting of its expression. We cannot recognize copyright as a game of chess in which the
public can be checkmated.

12
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252- 53 (3d Cir. 1983), cert. dismissed, 464
U.S. 1033 (1984). An important variant on the idea/expression dichotomy is known as the "merger" doctrine, which
holds that where there are only a small number of ways to express a particular idea, copyright protection does not
apply. Thus, for example, copyright protection does not extend to a description of the rules of a game because the
expression of the rules "merges" into the idea of the game. See Morrissey v. Procter & Gamble Co., 379 F.2d 675
(Ist Cir. 1967).
13
17 U.S.C. 102(b)
14
For example, the United States Supreme Court held, in Mazer v. Stein, 347 U.S. 201 (1954), that the creator of a
statuette that served as a lamp base was entitled to copyright protection only to the extent that the statuette had
artistic or aesthetic value apart from its functionality as part of a lamp.
15
379 F.2d 675; 154 U.S.P.Q. (BNA) 193 June 28, 1967

7

3.0 COPYRIGHT DOES NOT PROTECTS IDEAS, ONLY THEIR EXPRESSION
Although the work itself may be protected, the idea behind it is not. For some copyright works
people say that it is the expression of an idea that has copyright protection rather than the
underlying idea. However, the borderline between expression and idea is very difficult to define -
ultimately only the courts can do this. A traditional concept is that copyright protects the
expression of an idea but not the idea itself. This concept has been highly developed by US
courts. The approach of the UK court to this in the context of computer programs has been
varied. In the 1992 case of John Richardson Computers, it was thought that it would be right to
adopt a similar approach in England. A few years later, in Ibcos, the concepts usefulness was
doubted, in that it would lead to complications so far as UK law is concerned and risk over
citation of US authorities, which are based on different statutes. The view was that UK copyright
cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea.
In Hollinrake v Truswell
16
, Herschell LC referred to the fallacy perpetrated by counsel that
copyright could subsist in an idea. In the case, the plaintiff failed in a claim for copyright in a
device for measuring the dimension of sleeves in the form of a cardboard measurement chart.
Rejecting the claim, the court identified the fallacy as the failure to distinguish between literary
copyright and the right to patent an invention. However, it is a fallacy which has survived to the
present. Over the last 100 years, the courts have repeatedly stated that copyright protection

16
(1894)

8

extends only to the expression of ideas, not to the ideas themselves. Seemingly unchallengeable
authority has accumulated on this point, but it has not deterred litigants from attempting to claim
copyright in abstract ideas.
The requirement that a work must be put into a tangible form is one of the determining factors.
This will be of great importance even if the author is apparently unconscious of what is actually
being created, and the control of arrangements whereby the work is produced is left to another.
Similarly, it was stated by Lord Denning MR in Ladbroke v William Hill
17
, that Ideas, thoughts,
fancies in a mans brain are not protected, but once reduced to material form are capable of
copyright protection.
In Donoghue v Allied Newspapers
18
, Farwell J stated, A person may have a brilliant idea for a
story, or for a picture, or for a play and one which appears to him to be original; but if he
communicates that idea to an author or an artist or a playwright, the production which is the
result of a communication of the idea to the author or the artist or the playwright is the copyright
of the person who has clothed the idea in form. In Donoghue, a ghost writer wrote up the
experiences of a successful jockey. It was held that copyright was owned by the newspaper
employing the journalist who had produced the articles purportedly by the jockey, and not the
jockey, who simply recounted his experiences, but did not commit them to writing. Farwell J

17
(1962)
18
(1938)

9

stated that If the idea, however original, is nothing more than an idea, and is not put into any
form of words or any form of expression such as a picture, then there is no such thing as
copyright at all. For instance, in Cummins v Bond
19
, the author was actually supposed to be a
ghost, the spirit of Cleophas from the New Testament who purportedly communicated through a
medium. The pen was held by the medium who was in a trance and who responded to prompting
and questioning from the defendant who believed himself to be in touch with dead Glastonbury
monks. The court (refraining from inquiring into the reality of the alleged spirit) held that
copyright attached to the medium who actually wrote the alleged utterances down. However, the
physical act of committing words or images into a material form is not always the determining
factor and the courts have, in the interests of practical necessity and commercial reality, accepted
certain refinements of these principles. A secretary who takes down a dictation of notes or a
mere copyist is not an author (Riddick v Thames Board Mills Ltd
20
; British Oxygen v Liquid
Air
21
,) an approach that can be justified on the basis that originality for the purpose of copyright
arises from the application of skill, labour and effort in creation, not simply the physical labour
of compiling a work.

19
(1927)
20
(1977)
21
(1925)

10

It is well established that there will be no copyright in a banal idea. In Kenrick v Lawrence
22
, the
plaintiff sought to claim copyright in the concept of a hand filling in a ballot paper. The court
affirmed that there could be no copyright in a banal idea. If an expressed idea was commonplace
and simple, nothing short of exact literal reproduction would infringe the copyright in it.
Similarly, if there is no other way of expressing a certain subject, there will be no copyright
capable of protection. (A point subsequently applied in a computer software case, Total
Information Processing Systems Ltd v Daman Ltd
23
, although since doubted.) In Bagge v
Miller
24
, the plaintiff had suggested the idea for a sketch, but left it to the defendant to compose
it in a dramatic work. The court took the view that The mere suggestion of an idea which is
embodied by another in a dramatic work written by him does not constitute the originator of the
idea an author or a joint author of the dramatic work.
In Wiseman v George Weidenfeld & Nicolson
25
, the plaintiff had been a helpful critic and
adviser in assisting the second defendant to turn a novel into a play. He had not written any
dialogue and, whatever his degree of artistic involvement, could not be said to be a joint author.
The courts have distinguished between the situations where a person has ideas and is then
commissioned to produce work, but, in each case, a work has been made subject to contract or

22
(1890)
23
(1992)
24
(191723)
25
(1985)

11

under equity. In Green v New Zealand Broadcasting Corporation
26
, broadcaster Hughie Green
brought an action for copyright infringement based on a television variety show he had
conceived and broadcast successfully in the UK called Opportunity Knocks. The New Zealand
Broadcasting Corporation produced their own version of the show incorporating the same
format, approach and catchphrases. Hughie Green claimed copyright protection in the literary,
musical and dramatic format of the show. However, because of the skeletal nature of the scripts,
simply providing a formula for the production of a talent show contest, no copyright could be
claimed. The scripts themselves only gave guidance and it could not be determined how the
material would ultimately be presented on screen. That would only be apparent to those who
watched the programme. The New Zealand Court of Appeal and the Privy Council took the view
that copyright could not protect a general idea. It was stretching the meaning of coincidence to
believe that the New Zealand Broadcasting Company could have independently originated a
similar show. However, the Court of Appeal quoted with approval the judgment in Tate v
Thomas
27
that, since copyright created a monopoly, there had to be certainty in the subject
matter of that monopoly in order to avoid injustice to the rest of the world.
The seeming clarity of the law in this area has been muddled by remarks taken out of context and
by the continuing optimism of some claimants. Admittedly, in Mirage Studios v Counter Feat
28
,

26
(1989)
27
(1908)
28
(1991)

12

the idea of aggressive humanoid sporting turtles being the subject of copyright was reluctantly
given some endorsement, but this has not been followed and was only an interim decision.
A distinction was made in Rees v Melville
29
between ideas which could not be the subject of
copyright and situations and incidents in a dramatic work, which could be. The court might, in
certain circumstances, have to consider that the mode in which the ideas were worked out and
presented might constitute a material portion of the whole play, and the court must have regard
to the dramatic value and importance of what, if anything was taken. This would be so even
though no language was directly taken. Attempts have recurred in the commercial and industrial
world to protect, in particular, the design of products. However, the courts approach has
remained consistent unless evidence of the copying of a literary or artistic work already in
existence could be shown.
The case of Kleeneze Ltd v DRG (UK) Ltd
30
involved an infringement action over the design of
a letterbox draught excluder. The court held that the defendants had taken the plaintiffs concept,
but none of the skill and labour that went into the design of the product was in issue. In the
absence of patent protection, the court held the defendant was entitled to copy. The defendants
had simply seen one of the plaintiffs products and produced a variant themselves. To some
extent, the vulnerability of mere ideas under copyright law has been mitigated by the doctrine of

29
(1914)
30
(1984)

13

confidential information; Frazer v Thames Television
31
, but the best advice to those blessed with
minds which generate new ideas is to ensure they are expressed in material form, preferably in as
complex a way as circumstances or argument can suggest.
4.0 COMPUTER PROGRAMS
A computer program is a series of instructions ("computer code") that tells a computer how to
perform a particular task. In many ways, a program is analogous to a cake recipe, which contains
the instructions for mixing and baking a cake. Unlike the typical cake recipe, however, a
program is written in one of various computer languages. Many types of computer languages
range from those actually used and understood by human programmers ("source code") to the
strings of ls and Os used internally by the machine ("object code").
32
One aspect of each
computer program is its code, but programs also produce distinctive screen displays, like the
display of brightly colored imaginary characters on the screen of a Pac-Man video game or the
replica of an accountant's ledger generated by a spreadsheet program. These screen displays
themselves are protected by copyright ("copyrightable").
33




31
(1983)
32
Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, Pg. 74
33
For example, when the user types "open" or selects "open" from a menu, the program may cause a window to
appear on the screen containing previously stored information.

14

4.1 Are computer programs protected by copyright?, How is UK and US?
In most countries, computer programs are protected by copyright as literary works. Article 10 of
the Agreement on Trade-Related Aspects on Intellectual Property (TRIPS Agreement)
contends that: Computer programs, whether in source or objects code, shall be protected as
literary works under the Berne Convention
34
. Article 4 of the WIPO Copyright Treaty also holds
that: Computer programs are protected as literary works within the meaning of Article 2 of the
Berne Convention. Such protection applies to computer programs, whatever may be the mode or
form of their expression. According to the law governing copyright in the United Kingdom,
computer programs are listed as literary works in section 3.1 of the Copyright Designs and
Patents Act 1988, with no further definition. In the United States, the 1976 Copyright Act
defines a computer program as a set of statements or instructions to be used directly or
indirectly in a computer in order to bring about a certain result.
35

Computer programs are protected by copyright. British law protects computer programs as
literary works. The scope of protection for computer programs has been subject to an ongoing
debate and has recently been addressed by British courts. A computer program consists of literal
and non-literal elements. The source code and the object code are the literal elements of a
program and are protected by copyright. A computer program does not only consist of literal

34
(1971)
35
The 1976 Copyright Act

15

elements but also of non-literal elements. They are what the user of the programs sees on the
screen, the user interface. This includes aspects such as the structure of the program, sequence
and organisation, the screen display, the look and feel and the input and output routines of the
program
36

5.0 COPYRIGHTABILITY AND COMPUTER PROGRAMS
In light of the above descriptions of copyright doctrine and computer programs, the issue
addressed by the materials described in this guide is whether a particular aspect of a computer
program (its computer code, display screens or user interface) is entitled to copyright protection.
Note that this issue is, in some sense, rather narrow. To say that an element of a program-its
code, for instance-is copyrightable says nothing about what the author must prove to show that
another has infringed that copyright. Nor does the determination of copyrightability tell the
author the duration of the copyright, what remedies are available for infringement, or which
court has jurisdiction to hear an infringement claim. Nevertheless, copyrightability is a vital issue
which must be determined as a threshold matter in each software copyright case.
37

In certain cases, the answer is relatively straightforward. For example, a computer program's
literal code (source code and object code) traditionally has been considered a "literary work" for

36
Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, pg. 74-75
37
Ibid, pg. 75

16

purposes of copyright law, and it is now fairly clear that computer code itself is copyrightable.
38

Computer code in the form of a "mask" on a semiconductor chip is also protected under the
Semiconductor Act.
39
More problematic, however, are questions about a computer programs
characteristic screen displays. Are these displays part of the computer program itself? Should
they be protected separately as audiovisual works? Are they even "works of authorship"? Still
more difficult are the so-called "non-literal" elements of computer programs, such as their look
and feel or the "structure, sequence, and organization" of their code.
40
The difference between
literal and non-literal elements is best illustrated by an analogy to a book. A book contains
specific words in a specific order; so too, a computer program contains particular instructions in
a particular order.
These are "literal" elements, and, as to both books and programs, literal elements are
copyrightable. A book, however, also contains a plot or story-line. Unlike specific words in a
specific order, the definition of the "plot" is not wholly objective, and different observers might
describe a book's plot quite differently. So too, a computer program's instructions are written
with a certain structure, and the combination of a program's user interface elements (menus,
commands, and displays.) may create a characteristic look and feel that is susceptible of several

38
Example, Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 702 (2d Cir. 1992), Apple Computer, Inc. v.
Franklin Computer Corp., 714 F.2d 1240, 1248 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984); Stem Elecs.,
Inc. v. Kaufman, 669 F.2d 852, 855 n.3 (2d Cir. 1982).
39
17 U.S.C. 902.
40
Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1224 (3d Cir. 1986) (affirming District Court's
conclusion that there was copyright infringement based on the substantial similarities between the structures of two
programs), cert. denied, 479 U.S. 1031 (1987).

17

descriptions. Thus, like a book's plot, a computer program's look and feel is an intangible, non-
literal element of a creative work. As a result, different courts have varied widely in determining
the scope of copyright protection for computer programs,"
41
and the mission of this guide is to
provide a roadmap to the materials necessary to answer the confusing and often difficult
questions concerning whether particular elements of computer programs are copyrightable.
42

6.0 IS SOFTWARE COPYRIGHTABLE OR PATENTABLE?
Patents and copyrights are two different types of intellectual property rights. It is possible to
protect some software under both copyright and patent law. Another significant difference
between patent and copyright for software is in the definition of an inventor versus an author.
43

Both copyright law and patent law are applicable to the protection of software in U.S. One form
of protection is arguably better than the other and there are vehement debates on the topic. This
provide the broad arguments each side offers as to the respective superiority of intellectual
property protection under patent and copyright laws and demonstrate that new technologies are
challenging bright line separations between the two forms of protection.
44

Copyright was once regarded as not being relevant to the sale of products other than those with a
creative element, such as books, art and gramophone records. Today, however, in addition to

41
Compare Whelan, 797 F.2d at 1224-25 (broad protection for the "structure, sequence and organization" of
computer programs) with Computer Assocs., 982 F.2d 693 (stringent limitations on copyrightability of non-literal
elements of computer programs).
42
Santa Clara Computer & High Technology Law Journal, Volume 10 | Issue 1: Article 3, pg. 75
43
"Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html.
44
Ibid

18

these traditional areas, copyright is vital in preventing piracy of computer software and
preventing copying of other related works. Software developers first turned to statutory
protection under the Copyright Act since the writing code was similar to other forms of writing;
computer languages were regarded as a different form of language. " When a computer program
is written out on a piece of paper, it is relatively clear that copyright will exist in that work upon
its creation, so long as the traditional copyright requirements are met.
45
The copyright
protection therein will function the same way as it would for any other literary work. And it has
been clear since the early 1980s that computer programs in general are copyrightable.
46

However, with the advent and proliferation of microcomputers and software in the 1970s,
copyright protection was used and has been used as the principal mode of protection for software
until very recently. Computer software, by its very nature as a written work intended to serve
utilitarian purposes, defies neat classification within the current intellectual property system. The
difficulty in classifying objects as artistic or utilitarian is not new to software; however, objects
such as lamps, mannequins and bicycle stands have been contested as either artistic or
utilitarian.
47
Kelly v. Arriba Soft Corp.,
48
it held that infringement exists through any
unauthorized display of copyrighted works on an Internet site, even if this is effected by
importing the works direct from the copyright owners site without any intermediary copying.

45
The U.S. Copyright Act (17 USC 100 et. seq.)
46
The U.S. Copyright Act
47
Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html
48
61 U.S.P.Q.2d 1564 (9th Cir. 2002)

19

Several other fact-specific cases have been decided regarding whether and to what extent various
portions of a software package may be copyrightable. In AT&T Corp. v. Excel Communications
Inc.,
49
and Lotus Development Corp. v. Borland International Inc.,
50
the court held the case by
looking and deciding that; to what extent various portions of a software package may be
copyrightable.
In broad strokes, copyright protection gives a copyright owner a bundle of specific rights that
are somewhat dependent on the type of work involved. Case law has often classified computer
software as falling within the statutory definition of copyrightable subject matter in the category
of literary works, as opposed to any other work of creative origin, although some manifestations
of software may be best protected as audio-visual works.
51
Over time, case law refined the
contours of patentability. Patent protection has been denied, for example, for inventions in the
form of certain algorithms and inventions relating to methods of doing business.
52


7.0 CONCLUSION AND RECOMMENDATIONS
7.1 Conclusion
From the discussion above, it is clearly that computer programs as such cannot be patented, but
may be protected under the copyright law in a wide range. All forms of computer programs and

49
50 U.S.P.Q.2d 1447 (CAFC 1999)
50
34 U.S.P.Q.2d 1014 (1st Cir. 1995), affd 116 S. Ct 804 (1996).
51
The U.S. Copyright Act
52
Patents 101" on the UC web site at http://www.ucop.edu/ott/ttprimer.html

20

the related documents, whether recorded as source code, object code, or in any other form;
including user programs and operating systems may be protected. It is obvious that, the purpose
of copyright is to protect particular expressions of an idea not the idea itself. Broader protection
for software, as provided by patent law, must meet the standards of novelty and no obviousness
in order for that type of intellectual property protection to apply. For the purpose of this study
paper, both copyright and patent law, have a place in protecting software, depending on the
particular format of an application, looking on its usage, presentation, and an array of other
factors that have traditionally differentiated intellectual property between the two forms of
protection. In the event that tightens the examination process in granting patents to applications
relating to software and business methods, it may become more difficult to obtain patents in this
field and the focus may then move back to copyright protection.
It is now the time to accept that copyright protects computer programs and other digital
information, whether they are in human-readable source code or are an executable program that
is intended to be understood only by a computer. Copyright provides protection for computer
programs that is both easy to obtain, it occurs automatically as the computer program is written
and effective against someone who is making or distributing copies of the software program.
It is the observation that, copyright of software is the best and more profitable than patent.
WHY? In many countries, computer programs, whether in source or object code, are protected

21

under copyright. The major advantage of copyright protection lies in its simplicity. Copyright
protection does not depend on any formalities such as registration or the deposit of copies.
International copyright protection is automatic, it begins as soon as a work is created. Also, a
copyright owner enjoys a relatively long period of protection, which lasts in general, for the life
of the author plus 20 or 50 or, in certain countries, 70 years after the authors death. Patent must
be applied for, in principle, and in each country in which to seek patent protection. In order to
enjoy patent protection an application for a patent shall comply with both formal and substantive
requirements and a patented invention shall be disclosed to the public. These requirements can
be legally and technically complex, and their compliance often requires a legal experts
assistance. Compared with copyright protection, the term of protection is much shorter, namely,
in general, from the filing date of the application to the intended protection.
Hindrance economically: Software patents can be an economic hindrance: HOW? Strong
software patent protection is a barrier to market entry and mostly discourages productivity.
Software patents can create an "anti commons". The Anti commons is like Hobbe's state of
nature; poor, nasty, and brutish. The Anti commons is also like Babylon where, each proprietor
has one piece of useful information but the transaction costs created by the patent regime prevent
socially useful combination of these different pieces.

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Copyright and patent protections of computer software are enhancing each other systematically,
although copyright seems to be more better than patent on the protection of software program.
For inventions that can be hidden in software internals, copyright protection may provide
sufficient legal protection for underlying inventions as well.

7.2 Recommendations
There is the need to amend Tanzania laws, and also to encourage having a single piece of
legislation in Tanzania to cater for and, harmonise certain aspects of copyright and related rights
in the information society. And the legislation or the amendment to encourage must aims to
establish a level playing field for copyright protection in the information society and would cover
software programs, and it must also create a new rights for programs which will reward and
protects internal and external functional aspects of programming. It must also not affect the legal
protection of computer programs or databases but create a new right for software programs only.
The attempts to provide legal protection for computer software must have been amending
existing legislation, or to enact new legislation to cater for software protection, because computer
technology is advancing at a rapid rate everyday.

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It is the opinion that, the need of protection of computer software should focus on the unique
requirements of special legislation for the protection of computer software. The good balance of
this will be the attempts to draft legislation (sui generis legislation) on the national and
international levels to cater for the protection of software. This will create a new rights for
programs which will reward and protects internal and external functional aspects of
programming easly.
The good proposal of software protection National and International is a sui generis law, in
which will contain both copyright and patent laws, or a hybrid between the laws of copyright and
patent for the protection of software. Successful of this, both the expression and the innovative
ideas involved in the creation of the computer programs would be granted protection, which also
the legislation will create a new rights for programs which will reward and protects internal and
external functional aspects of programming.
The legislation should be smart, fitted and well-cut to cover the full entre range of computer
programs, whether they display a literary work, control the operation of a machine, or originate
their own ideas.
The term of the protection for software program in the new legislation should be provided for
long enough to allow a proprietor to fully exploit the economic and moral rights granted in his
product. The remedies also, must be provided clearly to fit, and to protect the wide range of

24

software interests as required. Also there is a need to classify the different types of 'software
infringement', and software remedies to the new legislation.
A sui generis form of protection is the most efficient way to the protection for computer
programs which geared to rapid changes. At the international scope of the software, sui generis
protection must be developed as a concerted effort by the world legal community.
Generally, the best thing for promoting and widely known of this vital new area of the law is a
multinational treaty which will be created specifically for the protection of computer software,
which generally, it would be pre-mature to establish a sui generis treaty for the protection of
software, and after the adoption of the treaty it will be the option that, multilateral treaty should
be the final step in the process of providing worldwide protection for computer programs.







25

8.0 BIBLIOGRAPHY
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