Copyright 2022

The Copyright 2022 guide covers 14 jurisdictions. The guide provides the latest information on copyright protection, authorship, collective works, economic rights of copyright owners, copyright management systems, collective rights management, freedom of speech/right of information, neighbouring rights, and copyright infringement and litigation.

Last Updated: February 17, 2022

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Irell & Manella LLP was founded in 1941 and is nationally recognised for its litigation, intellectual property and transactions practices. With one of the oldest and deepest IP practices in any multi-practice law firm, Irell & Manella LLP is known for successfully representing clients in high-profile cases involving copyrights, patents, trade marks, trade secrets, unfair competition and antitrust issues. The firm has offices in Los Angeles and Newport Beach and includes nearly 50 attorneys who handle IP cases. Well known for the strength of its copyright capabilities, Irell has substantial experience litigating copyright disputes on behalf of plaintiffs and defendants in an array of industries.


The Hard Problem of Software Copyright at Its Half-Century Mark 

In a world of ever-shortening news cycles, sometimes the clarity we need comes only by adverting to the larger picture. In that spirit, let us start with the enquiry: Where was copyright doctrine 100 years ago? The answer takes us back, in the US context, to 1922's Jeweler’s Circular Publishing Company v Keystone Publishing Company, wherein a federal court of appeals recognised copyright subsistence in the industrious compilation that goes into making an index of jewellery prices. That approach confers ownership over “sweat of the brow”.  It took almost 70 years until the US Supreme Court disavowed that sort of protection in Feist Publications, Inc v Rural Telephone Service Co in 1991. Although other countries continue to follow the older approach, Feist has reigned supreme on US shores for over 30 years now. 

Repeating the exercise, but narrowing the timeframe by half, let us now focus our gaze on the conundrum that occupied copyright doctrine a half-century ago. In that year, Professor Eugen Ulmer of the Max Planck Institute for Intellectual Property in Munich published his path-breaking study: "Copyright Problems Arising from theComputer Storage and Retrieval of Protected Works", 8 Copyright 37, 1972. Already by 1972, eight years had passed since the US Copyright Office accepted registration of its first computer program, treating it as a species of “book” protected under the then-governing 1909 Act. The issue prompted various commentators to investigate – see Elmer Galbi's "Proposal for New Legislation to Protect Computer Programming", 17th Bulletin Copyright Society 280 (1970).   

Because it took from 1922 until 1991 to resolve the first issue, it is hardly surprising that no definitive resolution has yet come to the 1972 problem.  Indeed, the various national studies gathered in this guide only highlight ongoing issues concerning copyright protection for software and all the associated issues that thereby arise. As an observer of copyright doctrine both as it develops on American shores and throughout the world, it is fascinating to hear variations on the theme sounded by various national systems. The resulting symphony is sometimes dissonant, at other times harmonious, but always fascinating. 

The US Congress revised the above-mentioned 1909 Act with a completely new governing statute, passed in 1976. Although that landmark legislation revamped the entire field, it contained one notable lacuna – the problems of software lay beyond Congress’s immediate ability to address, so it punted the matter.  In particular, Congress chartered a special commission at the end of 1974 to engage in extensive investigation. Four years later, that blue-ribbon panel issued its recommendations in the"Final Report of the National Commission on New Technological Uses of Copyrighted Works" (31 July 1978). 

The issue was no more tractable in the 1970s than it is today. On the one hand, computer software represents a utilitarian product far from the core of copyright protection – see Pamela Samuelson, Randall Davis, Mitchell D Kapor and JH Reichman's "A Manifesto Concerning the Legal Protection of Computer Programs", 94 Columbia Law Review 2308 (1994). On the other hand, existing legal regimes were even more inhospitable to protection of software so, for want of a better alternative, it made more sense to locate its protection under the copyright regime than in patents, trade secrets, or other existing bodies of law – see Peter S Menell, "Envisioning Copyright Law’s Digital Future", 46 NYL School Law Review 63, 68–97 (2002–2003); and Peter S Menell, "Tailoring Legal Protection for Computer Software", 39 Stanford Law Review 1329 (1987). 

The majority of the Commission on New Technological Uses of Copyrighted Works (CONTU) accordingly recommended that software be given protection as a matter of copyright law. Congress accepted that recommendation and correspondingly amended the 1976 Act to make software protected, via the Computer Software Copyright Act of 1980. Given that its implementation was written in source code (consisting of letters and numbers) or in object code (consisting of 1's and 0's), the amendment assimilated this type of work into the older category of literary works, also written in letters and numbers (see 17 USC § 101).   

That history should not blind us to alternatives. In the same year as CONTU issued its Final Report, the premier international body pushed to devise a sui generisform of legal protection for computer programs – see World Intellectual Property Organization, "Model Provisions on the Protection of Computer Software", 14 Copyright 1213 (1978). Even within CONTU itself, unanimity was lacking: Commissioner John Hersey dissented, forcefully arguing against copyright protection for computer programs, and Vice-Chair Melville B Nimmer only agreed partially with the majority, expressing his reservations in a concurrence. Although the reader is free to view me as biased, I regard the panoply of subsequent developments as richly vindicating my father’s nuanced viewpoint – see David Nimmer, "Codifying Copyright Comprehensibly", 51 UCLA Law Review 1233 (2004).  

But enough of alternative histories. The US enshrinement of software as copyrightable material in 1980 paved the way for future treaty accords, including the requirement within the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") that all adhering countries use the law of copyright as the vehicle to protect software. By now, the force is irresistible. 

Thus, over the course of five decades, we have seen software progress from a haphazard addition to an antecedent body of copyright law to the point where protection for software has metamorphosed into one of the primary elements of copyright doctrine itself. The impact is unavoidable, whichever way one turns. In this way, copyright law becomes the vehicle to fulfil a famous venture capitalist’s diktat from over a decade ago, “Software is eating the world” – see Marc Andreessen, "Why Software Is Eating the World", Wall Street Journal, 20 August 2011. 

Let us delve into some of the particulars. An early question to arise after 1980 was how to register software with the United States Copyright Office, to the extent that it contains proprietary material. Given that deposited material becomes part of the public record, a claimant could lose trade secret protection by inadvertently disclosing confidential material. The solution adopted was to allow special relief: as an example, when source code contains trade secrets, the owner may deposit simply “[o]ne copy of the first ten pages and last ten pages, blocking out none of the code” – US Copyright Office, "Copyright Registration of Computer Programs", Circular 61. Now, we switch our focus to India. This year’s submission highlights the new standards applicable to register computer software, namely that “the applicant needs to file the first ten and last ten pages of source code… with no blocked-out or redacted portions” – see India, 2.4 Copyright Protection: Software. The standards are transparently similar. 

The voracious appetite to digitise content led to a major amendment of US copyright law in 1998. The resulting Digital Millennium Copyright Act’s primary innovation was to add a new right to the statute, not in the nature of copyright infringement, but instead a “quasi-copyright” right to protect against circumvention of technical measures by which copyright owners protect their works online – see 17 USC § 1201. This year’s submission highlights the new standards applied under Chinese law, affording protection to “technical measures” that constitute “effective technologies, devices or parts used for prevention and restriction of browsing or appreciating of works, performances, audio and video recordings or provision of works, performances, audio and video recordings through an information network to the general public without the permission of the right holder” – see China, 5.1 Anti-circumvention Right. Again, the parallels between the two national schemes is apparent. 

Hand in glove with protection of software as a literary work has been its expansion into other realms. Thus, one of the primary domains in which computers are deployed at present concerns the formulation of websites.  Much litigation has arisen in that regard under US law. This year’s submission highlights that Turkish law now extends to websites, affording them protection as works of fine art – see Turkey, 2. Copyright Protection: Distinct Categories

A variation on that theme emerges in another nation’s law. This year’s submission highlights the innovation of Taiwanese legislation to minutely regulate public transmission of works on the internet "knowing that broadcasting or transmitting the works publicly in such a way infringes economic rights” – see Taiwan, 9.1 Types of Copyright Infringement. Detailed standards follow of a sui generis nature, including those that act as follows: 

  • "to provide the public with computer programs which have aggregated the Internet Protocol Addresses of such works; 
  • to direct, assist or preset paths to the public for using computer programs in the preceding item; and/or 
  • to manufacture, import or sell equipment or devices preloaded with the computer programs of the first item." 

These standards, divergent from those promulgated under US copyright law, emphasise the richness of world copyright doctrine. 

Speaking of distinctive, perhaps no copyright development over the last year has been as monumental as the US Supreme Court’s pronouncement in Google LLC v Oracle America, Inc – yet another piece of litigation to arise over software. In this instantiation, the Court ruled that application programming interfaces (APIs) may be widely copied pursuant to the distinctive US doctrine of fair use. This year’s US submission highlights that ruling, the effects of which are only beginning to reverberate both inside and outside US borders – see United States, 7.1 Fair Use Doctrine/Fair Dealing

Of course, the national chapters in this guide canvas the full panoply of copyright law, extending beyond the software sphere. As a single case in point, consider Sweden’s implementation, set to take effect on 1 July 2022, of various EU directives – see Sweden, 1.1 Governing Copyright Statute

Before concluding, the reader’s special attention is drawn to the lengthy discussion in this guide of non-fungible tokens (NFTs) – see the USA Trends and Developments report, "Trends in 2022: emerging issues in NFTs". The entire presentation would have been unintelligible to a copyright observer in 1972, when Professor Ulmer composed his article calling attention to this field. At that early juncture, conceptualisation centred on such applications as a computer program to automate the operation of a building’s air-conditioning system. Yet, 50 years later, such emerging issues as NFTs pose salient enquiries vital to copyright development in the international sphere.   

Because of my own role as co-counsel in a copyright infringement case brought against Quentin Tarantino for his licensing of an Israeli company to release NFTs containing scenes from his screenplay for Pulp Fiction, I will not publicly comment about this particular issue, beyond observing how perfectly that focus fits the current zeitgeist. Back in 1972, software was a minor issue that did not comfortably fit into any existing legal framework, so the decision was made to cabin it into the law of copyright. Now, 50 years later, as a direct consequence, the universe of new copyright puzzles today is no fiction – it is the pulp with which we copyright attorneys must deal on a daily basis. The details, richly set forth in numerous national legal schemes, follow for the reader’s edification. 

Author



Irell & Manella LLP was founded in 1941 and is nationally recognised for its litigation, intellectual property and transactions practices. With one of the oldest and deepest IP practices in any multi-practice law firm, Irell & Manella LLP is known for successfully representing clients in high-profile cases involving copyrights, patents, trade marks, trade secrets, unfair competition and antitrust issues. The firm has offices in Los Angeles and Newport Beach and includes nearly 50 attorneys who handle IP cases. Well known for the strength of its copyright capabilities, Irell has substantial experience litigating copyright disputes on behalf of plaintiffs and defendants in an array of industries.