Intellectual Property, Technology

Form Meeting Function: When Copyright Covers More (Or Less) Of Your Software Than You Think

This is a major issue in the world of software, including but not limited to video games.

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Okay, I admit it – in my youth, I spent more than my fair share of time playing video games, either at home or in arcades with friends. I will also neither confirm nor deny that I enjoy playing far more sophisticated ones with my kids nowadays.  The evolution of computer software over my lifetime (especially when it comes to video games) has been extraordinary, to say the least. That said, I also have the luxury of appreciating such entertainment from a legal perspective, having counseled game developers and publishers regarding the protection and commercial exploitation of their intellectual property rights in video-game properties.

Oddly, playing such games has proven a lot less challenging than trying to protect the intellectual property rights embodied within them – and computer software in general, for that matter – and for good reason. Patents protect ideas, while copyrights protect the expression of those ideas. Known as the “idea-expression dichotomy,” this concept is a fundamental principle of copyright law that has withstood the test of time, reflecting a demarcation point between patents and copyrights that, at its essence, helps distinguish the protection of functional elements from artistic ones. In theory, the doctrine seems fairly straightforward, but when it comes to computer software, its application is far from simple in practice.

Copyright law can protect a great many literal and non-literal elements of computer software, but many developers are lulled into a false sense of protection under copyright that may exceed its scope. Although the Copyright Act of 1976 did not specifically reference computer software as a “literary work,” Section 117 of the Copyright Act was added to define “computer programs” and imply that both source code (human-readable instructions comprising a computer program) and object code (the machine-readable instructions compiled from the source code) formats are protectable expression. The artwork and music elements of a computer program are also protectable as audiovisual works. For example, game characters, theme songs and animation sequences — all these elements are protectable expression. Moreover, copyright protection has been extended over time to include non-literal elements of expression as well, such as the structure, sequence and organization of computer programs — think graphical user interfaces and the progression of gaming levels for videogames. From a standpoint of protectable expression, copyright law affords a great deal of protection, but it is for this reason that one needs to be careful.

Although copyright law has been interpreted to extend beyond the literal elements of expression, such protection only extends so far. Copyright simply does not protect ideas, methods, systems and processes — such concepts remain the purview of patent law. Many copyright owners forget that the idea-expression dichotomy acts as a delimiter on the extent of copyrightable expression, wrongly assuming that functional elements are covered when they are not.

For example, an accounting software product’s source code (and compiled object code) would clearly be copyrightable, but an accounting spreadsheet within the program or functions within the spreadsheet would likely not be covered. Furthermore, when such copyrightable expression becomes indistinguishable from the underlying concept or idea, the expression has been held to “merge” with the idea, and copyright no affords such protection (unless there is identical copying).

This “merger doctrine” under copyright law is extremely important in the video-game realm — without it, many game elements (such as bonus “perks” or specialized equipment upgrades) would not be as prevalent as they are today.  Moreover, commonplace elements that would be considered stock or part of the genre (such as cowboys wearing cowboy hats and riding horses) are not protectable as well – known as the scènes à faire doctrine, this principle further limits the scope of protectable expression. Although copyright law has expanded to cover far more subject matter over time, it doesn’t always cover as much as a company (or client) may think.

When it comes to computer software developed by your company (or your client), the idea-expression dichotomy may not be obvious, but it needs to be kept in mind. Functional elements must be parsed and carefully evaluated as part of any intellectual property protection strategy for the software. That said, obtaining patent protection for the ideas embodied within the software may not be feasible for a number of reasons, from concerns over patent eligibility to the narrow protection of potential claims should the subject matter be patent-eligible. When faced with these obstacles, both literal and non-literal elements must then be weighed to understand the breadth of protection available to the computer software product. In my experience, avoiding this process leads to company (and client) misconceptions over the breadth of intellectual property protection for the developed product that usually leads to a good deal of heartache for the copyright owner and intellectual property counsel.

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Whether in the development of computer software or in the licensing of resulting products, the idea-expression dichotomy is a foundational principle that cannot be ignored.  Whether you like it or not, it shapes the scope of protection afforded copyrightable subject matter.  It may be more challenging to apply in the case of computer software, but is a necessary step to ensuring that the copyright owner as well as counsel are synchronized about attendant IP rights. Addressing the doctrine and being proactive is absolutely worth the investment. Depending on your perspective, it just may end up giving you more (or less) rights than you think.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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