Andrew Horrocks & Matthias Kuznik, Clyde & Co LLP
July 12, 2012 | 2 Comments
Implementation and functionality of most new technology now depends on software. Software for renewable energy technology, often referred to as 'CleanTech', is no exception to this rule. For example, a consumer considering participation in a feed-in tariff (FiT) scheme will want to know if their property is in fact suitable for solar generation before committing time and money. Consumer software products have been developed to simulate location-specific suitability. One application, for example, allows users to locate their home on Google Maps, insert symbols representing the envisaged location of the panels and additional data such as the pitch of their roof and suspected sources of shadows, following which the software estimates the generation of solar electricity.
With demand for CleanTech increasing, software developers investing significant research, development and financial resources into their products will need to rely on intellectual property (IP) rights to protect those investments. While developers and investors rely on UK and EU law, this is merely part of the larger issue of protecting intellectual property in renewable energy technologies globally. For example, the Chinese Ministry of Industry and Information Technology is pursuing a 10-year growth plan to increase the country’s renewable energy profile, having already overtaken the US in terms of installed wind generation. China’s legal framework for IP protection has therefore been developed rapidly over recent years so as to protect the future values in renewable energy, including changes to patent law to attract foreign direct investments.
Protection by Copyright
As with all software, the most important legal protection for CleanTech software is copyright law. In the UK this is governed by the Copyright Designs and Patents Act of 1988 (CDPA). The CDPA includes computer programs as well as ‘preparatory design material for a computer program’, such as original literary works.
The EC Software Directive defines a computer program as including: ‘Programs in any form, including those which are incorporated into hardware [and]... preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.’
Programmers seeking to develop software solutions for the CleanTech market will therefore want to ensure their work qualifies for copyright protection. Whereas computer programs, including the source code, may qualify for protection as original literary works under the CDPA, the screen designs may be protected by artistic copyright in much the same way an artist’s painting is protected.
A key requirement for copyright to subsist is that the computer program must be ‘original’. This will rarely pose any difficulties, as long as the program was created through the programmers’ own skill, judgement and effort.
Databases, however, demand a higher standard of originality to qualify for copyright protection. This will be of particular relevance to the CleanTech sector, given that many software applications use databases containing, for example, weather, climate, dispersion or oceanic data to perform calculations to determine things such as sunlight exposures or wind and tidal strengths of specific locations.
A database of, for example, UK cloud forecasts and records that enable a software application to assess the suitability of certain locations for the installation of solar panels will qualify for copyright protection ‘if, and only if, the selection or arrangement of the contents of the database constitutes the author’s own intellectual creation’ (section 3A(2) CDPA). If the decisions about what and how many forecasts and records to include, what to exclude, and how to structure the information and arrange it to enable the user to obtain a reliable prediction requires an act of intellectual creation, the database may well qualify for copyright protection.
As with any database, those collecting independent works, data or other materials to meet the demands of the CleanTech sector are also subject to a two-tier approach, whereby the database may be protected not only under the CDPA, but also the Copyright and Rights in Databases Regulations 1997 (‘the Regulations’), or even both.Protection under the Regulations can apply if the database can be regarded as ‘commercially valuable’ as the result of a financial investment (whether of financial, human or technical resources).
In the above example, the final database could therefore be subject to copyright at two levels (the cloud forecasts and records which, in the UK, might be subject to Crown Copyright if licensed through the MetOffice, as well as the database as a whole) and might also be protected under the Regulations derived from EU law.
The further qualifying requirement under section 3(2) CDPA that the work must be ‘recorded’, in writing or otherwise, will also usually be easy to fulfill. Programmers of CleanTech software should nevertheless bear in mind that because the CDPA includes ‘computer programs’ under ‘literary works’, only the underlying program language is protected, while, for example, the graphical user interface resulting from the programming may not be protected as a literary work (although artistic copyright could apply).
In fact, the question of whether the functionality of a software program, as opposed to its underlying code, can be subject to copyright protection is the key issue in a dispute presently before Europe’s highest court, the European Court of Justice (ECJ). In this case a software development company, SAS Institute, claims that another programmer, World Programming, infringed its copyright by developing a competing program allegedly based on detailed information originally set out in SAS’s own manuals.
While World Programming never copied any of SAS’s source codes (which would probably be protected by copyright), they nonetheless achieved a program performing the same functions as SAS’s product. SAS argued that copyright should also apply to the functions of computer programs, and not just the source codes, so as not to ‘deprive the copyright owner of a significant part of the value of the protection given to computer programs’. The English High Court referred a number of questions to the ECJ on the correct interpretation of EU law and, in particular, the Software Directive.
Advocate General Bot recently issued his opinion, ahead of the ECJ’s binding decision which is expected this year, on the questions referred by the English High Court. The Advocate General’s opinion concludes that the protection of a computer program is not confined to the source and object code but covers other elements which express the author’s own intellectual creativity, skill and originality. Therefore, computer programmers can only replicate the functionality or ‘look and feel’ of a program, if they do not copy a substantial part of the underlying source or object code or any other elements which are created by the author’s own intellectual creation.
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