Copyright Law In A Digital Age

• Author: Tom Flynn
• Position: Winner of the Matheson Ormsby Prentice Solicitors Prize for IT Law
• Pages: 36-44

Cork Online Law R eview 2007 4

Flynn, Copyright Law in a Digital Age

36

COPYRIGHT LAW IN A DIGITAL AGE

Defeating Protection, Defeating the Point

Tom Flynn*

Information technology has fundamentally changed how information is

dealt with. It has done so with a speed that inevitably gives rise to the question

of how well copyright law can keep pace, being ‘based on a model devised for

print media.’1 Whether the right balance is being struck between the

conflicting but legitimate interests of authors and the general public is a

question that merits attention. This essay will analyse the legal situation (with

particular emphasis on this jurisdiction) regarding three important policy

areas of copyright law in the digital environment: the applicability of

copyright to software, the problem of non-literal infringement and the issue of

protection-defeating devices.

A COPYRIGHT AS APP LIED TO SOFTWARE

The Copyright and Related Rights Act 20002 replaced the Copyright

Act of 1963. There had been some doubt as to how the 1963 Act applied to the

area of IT. This had partly been addressed by the European Communities

(Legal Protection of Computer Programs) Regulations3 in 1993, which

transposed into Irish law the Directive on the Legal Protection of Computer

Programs.4 However, in the 1990s, due to the large number of EC Directives

relating to copyright, it was decided that a new, consolidated Act was needed.

Section 17 (2) of the CRRA provides that ‘[c]opyright subsists … in

original literary, dramatic, music or artistic works, … sound recordings, films,

broadcasts or cable programmes … and … original databases’. Computer

programs fall under the definition of ‘literary works’ given in s. 2 (1). It is

submitted that it is an advantage that nowhere in the Act is ‘computer

program’ defined. In reference to the English Copyright, Designs and Patents

Act 1988, which also does not define ‘computer program’, David Bainbridge

has suggested that ‘[t]his is sensible in view of the rapid rate of change in the

computer industry as attempts to offer precise definitions would probably

prove to be unduly restrictive …’.5

The initial difficulty of adapting copyright law to IT was illustrated in

the Australian High Court case of Computer Edge Pty Ltd v Apple Computer

Inc.6 Here the majority held that whereas the source code of a computer

program (which is quite similar to human language) could be described as a

literary work, and thus eligible for copyright, the object code (which is

virtually indecipherable to humans) could not.7 With the greatest respect to

* Winner of the Mat heson Ormsby Prentice Solicitors Prize for IT Law.

1 Jessica Litman, “R evising Copyright Law for the Inf ormation Age” 75 Oregon Law Rev iew,

19, Spring, 1996 a t 19.

2 Hereinafter ‘CRRA ’.

3 SI No. 26 of 1993 .

4 Directive 91/250/ EEC.

5 Bainbridge, Intro duction to Computer Law (4th ed ., Longman, 2000) at 25.

6 (1986) ALJR 313.

7 Ibid per Gibbs CJ at paras 10 – 13 and per Brennan J at paras 13 – 15.