Computer Programs Copyright Exceptions

Computer Programs Copyright Exceptions
(Photo credits: Bombardier)

The CDPA 1988 in the UK provides a number of copyright exceptions related to the use of computer programs. These exceptions allow a person to copy whole or part of computer programs without infringing copyright. All these exceptions other than the adaptation exception cannot be limited or excluded by contract.

Section 50A(1) permits a “lawful user” to copying a computer program to make a single backup copy of it which is necessary for them to have for the purpose of their lawful use. Bently says that this defence provides a form of insurance for end users in case the computer program fails or gets damaged. Case law suggests that this exception will only be accepted when the backup is ‘necessary’. In the case of Sony Computer Entertainment Inc v Owen, the court held that creating a backup copy is not necessary when a person buys a game on a disk.

Section 50B permits a lawful user of a copy of a computer program expressed in a low level language to decompile it into a higher level language OR to incidentally copy it in the course of converting the program, subject to the following conditions:

  • The decompilation is necessary to obtain information necessary to create an independent program which can be operated with the program decompiled, or with another program.
  • The information obtained is not used for any other purpose.

Bently says that this defence is necessary to be ensuring compatibility between software would require decompilation, and the process of decompilation would require at some stage intermediary copying of a program (and that would prima facie by an infringement without this defence).

Section 50BA permits a lawful user to observe, study, or test the functionality of a computer program without infringing copyright by carrying out an act of loading, displaying, running, etc, the program for the purpose of determining the ideas or principles which underlie any element of the program.

Section 50C(1) permits a lawful user of a computer program to copy or adapt that computer program if that is “necessary for the lawful use” of the program. This exception only applies in the absence of contractual terms to the contrary. Bently says that it is meant to allow end users to fix program errors without infringing copyright.

In addition to computer program exception, the CDPA 1988 has an exception in Section 56 that allows purchasers of works in electronic form to make further copies or adaptations o the work.

A final exception related to computer programs is the one for temporary technology-dictated copies. Under this exception an action would be barred from copyright infringement if it merely creates a temporary copy that is integral to the technology process and is made to enable either (a) the transmission between a 3rd party and an intermediary or (b) lawful use of the work, on the condition that this temporary copy has no economic significance.

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