The tree of intellectual property laws has many branches. Each branch has its own fruit with a unique set of rules regarding its suitability, freshness and expiration date. A copyright branch is an intellectual property right granted to the creator on the form of expression of an original work, and gives him exclusive rights to use and distribute this work.
The copyright law in Israel and similarly the copyright laws in most countries of the world, classifies computer software as a literary work and based on this classification it grants its protection to this type of work.
For years, the scope of software copyright protection applied to any actual expression of software, including: characterization, design and source code. However, Section 7 of the Copyright Law, 2007 created a fundamental change in the scope of copyright protection in relation to software, when it stated that the screen display of software is not subject to copyright protection because it is a “product” that deserved to be registered as a design.
In this article we will examine what is the scope and essence of copyright protection for computer software and what will be considered a violation of copyright in computer software:
Scope and essence of copyright protection for computer software (source code protection)
As the court explains in the Dan-Al case (civil case (T.A district) 38918-12-09 Dan-Al v. Sanfir ( April 9, 2014)), copyright in computer software was recognized for the first time in Israel in the context of the ruling in the Apple v. New Cobb. Only in 1988 was the right explicitly enshrined in an amendment to the Copyright Ordinance, 1924, which stated that “for the purposes of copyright, computer software is legally a literary work within the meaning of the Copyright Law, 1911.” By virtue of this determination, computer software enjoyed all the economic rights that existed given to the owners of literary works.
In the ordinance (the old law) the term computer software was defined as follows: “‘computer software’ – whether it is a source program or whether it is a target code” (Section 2A of the ordinance, as amended by the Law to Amend Intellectual Property Laws (Adaptation to the Provisions of the TRIPS Agreement), 2006 – 1999, Sah 4). This reference comes to clarify that the software components protected by copyright as a literary work do not only include the source code of the software (the source code), which is code written in a software language that can be read by humans (or at least by programmers), but also the The target code (the object code), which is a “translation” of the source code into a binary language read by the computer.
The recognition that a computer program is legally a literary work was also preserved in the Copyright Law, 2007, when in section 1 of the law it was established that a computer program is a literary work. As for the definition of the term “computer software”, it was changed and in section 1 of the law it was established, Because “computer programming” means “computer software in any form in which it is expressed”.
The copyright protection for computer software extends both to different types of code (such as source code, target code or code that can be run on the computer system), and to additional modes of expression of computer software, such as algorithms and flowcharts, and also that the protection does not depend on the medium in which the software is stored In it – CDs, computer memory or other hardware components. This definition is broader than the definition used in the Copyright Ordinance, 1924, which conformed to the TRIPS Agreement and according to which software was protected either as source software, i.e. the software as written in a programming language, or as target code, i.e. the software as translated by a compiler so that it could be read by a computer.
In the matter of Alon Goren (civil case (Jerusalem district) 2619-06-14 Alon Goren v. Yeshiva Mir (Nevo, 13.11.17)) it was explained that copyright protection for software applies to all types of software such as operating software, application software and computer and video games . However, copyright does not protect an idea in the software but only the manner of expression of the software (civil case (T.A District) 38918-12-09 Dan-El v. Sanfir (Nevo, April 9, 2014)).
According to the case law and the literature, in order for a work to be protected by copyright, it must be original. In order for a work to be protected by copyright, the creator is not required to prove that his work has real artistic value, but he must prove that his work is the fruit of his labor and that he invested effort and originality in the work. Generally, the invention and creation of computer programs involve investment, labor, and originality, and therefore there is a place to grant copyright protection to computer programs.
Two lines of development in the field of copyright protection for computer software can be identified in Israel, one before the Copyright Law, 2007 and the other after it.
The interpretation in the ruling before the Copyright Law, 2007
As scholar Tony Greenman explains (Tony Greenman Copyright 202-201 (2nd ed., 2008)), any set of instructions designed to cause an action to be performed by a computer will be protected in any form in which it finds expression. According to the approach that was used in the case law before the Copyright Law, 2007, computer software has three development stages: (1) the software characterization stage – determining the software’s requirements and its functions; (2) the planning (design) stage – determining how the software will perform the defined tasks and (3) the programming phase – translating the design from schematic drawings and structures into a programming language.
In the Harfaz matter (Civil Appeal 139/89 Harfaz v. Ahitov, PD Med(4) 16, 19 (1990)) the Supreme Court ruled that the protection of computer software does not extend only to copying the software code itself, but to the three The development stages of the software. Each of the stages of software development can be manifested separately and therefore, the copyright in computer software extends to each of the stages of the software as well as to the finished work itself. It was also determined that the protection of software extends both to the verbal or external components of the software and also to the internal components, which are the selection of ideas and their organization. The protection extends beyond the literal code of the software and addresses the artwork, structure, user inputs, sequence and organization.
The first two stages – the software characterization stage and the planning (design) stage – are the most important and fundamental in software development because they determine the nature of the software and in which the greatest amount of creativity is invested. These stages are expressed in documents, specifications, drawings, etc., and therefore are not merely ideas. It is not necessary to present a tangible expression of each stage, but the perfect software is the tangible expression of each of its stages.
The artistic aspects of the software, for example the screens it creates, may be protected as an artistic work. Changing screens that create moving images may be considered cinematic works under the law and comparative law.
Copyright protection was also applied to the “look and feel” component. This component consists of the screens, the visual user interfaces, the menus, the texts and the graphic elements.
That is, until the enactment of the Copyright Law, 2007, copyright on software extended to all parts of the software and in particular to: the design of the software, the source code of the software and the look and feel.
After the Copyright Law, 2007 – there is no copyright in the software in the part eligible to be registered as a design
Section 7 of the Copyright Law, 2007 states that a design as defined in the Patents and Designs Ordinance or as defined in the Designs Law shall not be entitled to copyright protection: “Notwithstanding the provisions of Section 4, there shall be no copyright in a design as defined in the Patents and Designs Ordinance or in a design as defined in the law The designs, 2017-2017, unless the sample or design is not used and is not intended to be used for industrial production; the minister may establish conditions under which a sample or design will be considered to be used for industrial production.”
Section 1 (Definitions Section) of the Designs Law, 2017 (hereinafter: “The Designs Law”) defines the term “design” as “the appearance of a product or part of a product, consisting of one or more visual characteristics of the product or part of the product , as the case may be, including description, color, shape, decoration, texture or the material from which they are made.”
Also, Section 1 of the Designs Law defines the term “product” “including a set of items, packaging, graphic symbol, screen display…”.
That is, these instructions establish a negative arrangement, according to which a design that deserves to be registered as a sample/design will not be entitled to copyright protection. Therefore, a screen display of a software or an icon integrated into the software are not worthy of copyright protection since they can be registered as designs.
Therefore, a person who designed software, but did not submit an application for registration of the design or had his application for registration rejected, will find himself bald from here on out, as he will not be entitled to copyright protection, and will not be entitled to registered design protection except during the protection period according to the Designs Law for an unregistered design.
That is, in accordance with the provision of section 7 of the law, copyright on software does not extend to the design of the software but only to the source code of the software.
Copyright law distinguishes between primary infringement and secondary infringement. Primary infringement manifests itself in the performance of one or more of the actions that constitute exploitation of copyright in a manner reserved exclusively for the owner of the work. These actions were detailed in Section 11 of the Copyright Law, and their performance, without the consent of the copyright owner, constitutes a copyright violation. Such a violation does not require proof of any mental basis. That is, there is no need to prove knowledge of the infringing act, or that the product infringes. In section 8 of the permanent law there is a partial exception to this, which is not exempt from the violation itself: in the absence of knowledge of the very existence of the copyright, no remedy will be granted against the violator, except for an injunction.
Secondary infringement is manifested in the trade in infringing copies of copyrighted works. When it comes to secondary infringement of copyright, there is an infringement only when it is infringing copies, and when the defendant knew that they were infringing. Knowledge includes both actual knowledge and “closing one’s eyes” from seeing the visible reality and the facts on the surface.
Copying computer software
As with the infringement of any literary work, the infringement of computer software is accomplished by making a copy of the software or a substantial part of it, without the permission of the copyright owner. In the ruling, it was established that a “substantial part” can be quantitatively tiny, as long as it can be seen as part of the essence of the work.
A violation of each of the software development phases (the software characterization phase, the planning (design) phase, and the programming phase) constitutes a violation of the entire software, even when the infringer independently performed the other development phases.
In the matter of Alon Goren, it was explained that copying of computer software can be done in two ways: direct copying of the source software itself (whether or not the infringer made changes to it), or indirect copying, the operation of which allows the user of the software to access the source code of the computer software, to correct disruptions in the software and to develop new software, which is based on the idea embodied in the original software (civil case (Jerusalem district) 2619-06-14 Alon Goren v. Yeshiva Mir (11/13/2017); (Dr. Parzanti, copyright law, p. 577- 575)).
In the same matter, it was explained that in order to identify infringing software, the court is required to examine three questions: (1) Is the plaintiff’s software protected by copyright; (2) whether the defendant copied the plaintiff’s software; and (3) whether the part copied by the defendant represents an essential part of the plaintiff’s software. As long as the answers to these questions are positive, and the defendant did not receive a license or the copying was not carried out within the framework of the actions permitted by law, then a violation has been committed.
In the case law (CA 10242/08 Mozafi v. Kabli, paragraph 26 (10.10.2012); CA 7996/11 Safecom v. Raviv, paragraph 27 (11.18.2013)) two main conditions were established for proof of copying : (1) It must be proven that the defendant had access to the plaintiff’s work; and (2) it must be shown that the degree of similarity between the works excludes the possibility of accidental similarity. Along with these two conditions, two additional parameters were mentioned in the ruling, which are used to confirm the existence of copying: the first parameter is the importance of accumulating points of similarity – the more they are, the stronger the conclusion that it is copying. According to the second parameter, the question of similarity between the two works is a question of fact and of degree determined not based on a mechanical comparison of a number of similar words or lines in the works in question, but according to the judge’s impression of the works.
In the Ashraz case (CA 2392/99 Ashraz v. Transbton, FD NAZ(5) 255 (2003)) it was determined that the expression “use” is an inclusive expression for all the normal operations carried out in the software, and there is no separate protection for the use of the software per se, because it does not This is a defined action. Therefore, the use of the software and the copying of the software should not be considered as two separate violations.
Actions allowed in computer software
Section 24 of the Copyright Law defines the permitted operations in computer software, the performance of which does not require the consent of the copyright holder:
Permitted copying – copying for the purposes of backup or maintenance of the software and the computer system, or copying for the purpose of providing a service, if this is necessary for the use of the software.
Permitted use – copying and introducing changes in the software itself (creating a derivative work), for the purposes for which the software was intended, including correcting errors and adapting it to a computer system or for testing information security or for adapting the software to other, independently developed software.
The condition for permitted copying or use is that the copyist holds an authorized copy of the computer software.