Make copyright law user-friendly

I am constantly faced with complex arguments as to why a particular incidence of copying software is not illegal in those...

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.

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.

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.

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.

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.

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.

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)

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