I am constantly faced with complex arguments as to why a particular
incidence of copying software is not illegal in those
circumstances, writes the Federation Against Software Theft's Paul
Brennan.
However when an employee takes source code, or a company removes
protection from a demo version of software and sells it as its own
product, it certainly feels like theft, but technically it is not
stealing. The case of Oxford v Morris held that software was not
property and copying it was not stealing for the purpose of the
Theft Act. However it is copyright infringement.
So how do we go about clarifying matters and increasing protection
for software publishers? Outlined below are various significant
measures that are either in progress - or need to happen - to
ensure the huge progress made in software licensing laws made over
the past 20 years does not fall by the wayside.
Harmonisation
Many directives have come through from
the European Union (EU) including the Copyright Directive - now the
EU is turning its attention to enforcement. Soon we will see the
draft Enforcement Directive that will harmonise laws in the various
countries. Harmonisation is important as it ensures a crime is the
same in all countries.
Defrauding
Recommended by the Law Commission, and
awaiting the Government to put it into legislation, a statutory
Offence to Defraud will make it an offence to take software with an
intention to cheat and deceive. It will remove the need for the
prosecution's currently time-consuming process of dealing with
technical copyright points.
Technical measures
More and more software publishers
are using technical measures to protect their software but there is
always the risk that it is removed or circumvented. Although the
new Copyright Directive that comes into force in the UK in December
provides some enhanced safeguards, the downside is that they do not
apply to software as, for no logical reason that I can see,
software was specifically excluded from this benefit. This needs to
be rectified.
The Federation Against Software Theft's (Fast's) greater concern is
that the present UK draft regulations do not allow criminal
penalties for circumvention of technical protection, and civil
penalties can be expensive. If circumvention of technical
protection was a criminal offence even a developer starting out
would be able to go down the local police station and expect
something to be done rather than having to take out an expensive
injunction. (One small software publisher recently spent £25,000 in
two months on a case).
In 1994 Parliament passed Section 107A Copyright Designs and Patent
Act 1988 to give trading standards the authority and duty to
protect copyright items such as software. However, eight years
later it has still not received the necessary commencement order to
make it law.
Punishment
Compared to the US, damages in the UK for
copyright infringement are low, seemingly relying on costs as the
penalty. Crime in the 21st century cannot be fought with a 19th
century system. Too often everyone involved in the case suffers and
the software house gets a further hammering.
Proof
A copyright case can entail proving at great
length, expense and detail "the bleeding obvious" to paraphrase
Monty Python. This is especially so in criminal matters where no
presumptions are allowed. Even in cases of flagrant breach there
are too many technical defences available - it needs to be
simplified.
Searches
Search orders are hand crafted, expensive and
complicated. For instance, an independent solicitor from a
different firm must attend the search to explain his or her rights
to the defendant. This adds yet more cost, and must be simplified.
Conclusion
The present laws have come a long way and
do offer protection. However, many software publishers do not see
the system as user-friendly, and believe it to be expensive and a
waste of their time.
The resulting failure of software publishers to pursue rightful
claims is a worrying development in a country that needs innovation
- and one that must be addressed by all of us connected with the
industry.
Paul Brennan is general counsel at suppliers body the Federation
Against Software Theft (Fast)