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Copyright Guide: Computer programs, games and databases

Computer programs, games and databases

In the Copyright Act, the term "computer program" refers to the presentation of a data processing function as a sequence of commands that the computer's central processing unit retrieves from the operating memory which are then executed. Thus, "computer program" refers to a set of commands that make the computer perform a certain task. This definition of a computer program also includes non-functioning and defective computer programs, because it cannot be presumed that a set of command always performs the desired task.

In certain cases, the computer program's preparatory design material can also be considered to constitute a computer program. For example, Directive 2009/24/EC on the legal protection of computer programs also extends protection to the preparatory material leading to the development of the computer program. This refers to preparatory design work leading to the development of the computer program provided that the nature of the preparatory work is such that the computer program can result from it at a later stage. This can be interpreted to include, among other things, flow charts, detailed instructions, program listings and menu layouts. It should be noted that ideas cannot be protected as a computer program's preparatory material and thus remain available for others to exploit. In other words, a computer program's preparatory material should not be copied though anyone can exploit the ideas it contains.

The World Intellectual Property Organization's Copyright Treaty (WCT) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) do not expressly cite computer programs' preparatory material as protected material. However, computer programs' preparatory material can be subject to international protection as some other work.

Copyright requirements

Computer programs are protected by copyright as written works, if they exceed the required level of originality. In other words, the program must be the product of the author's creative and original work. According to the legislative history of the Copyright Act, creativity and originality are primarily expressed in the choices made by the program's author (programmer) when implementing programming methods to resolve a data processing problem. Thus, the level required to achieve copyright can be considered to be relatively low. However, if there is only one solution to the data processing problem that is dictated by mechanic requirements, the program is not considered to express the author's creative and original input.

Copyright offers inexpensive and simple protection. It does not require registration or a copyright mark (©). This means that copyright is created automatically by law when work that exceeds the required level of originality is created. In certain cases, registration is possible and even recommended.

For example, the United States has a voluntary system in place for registering computer program copyrights. A computer program that has been created in the United States must be registered before a copyright infringement lawsuit can be filed.  In addition, statutory damages for copyright infringement can be awarded pursuant to legislation only if the program is registered. Therefore it is recommended to register the copyright at the US Copyright Office, e.g., when marketing a computer program in the United States.

A computer program, also referred to as software, that exceeds the required level of originality may be protected by copyright, for example in terms of its code or graphic user interface.

Copyright primarily protects the written code of a computer program. The established interpretation is that both, source code and its translated machine language, as well as their intermediate forms, can be protected by copyright if they exceed the required level of originality. The way in which the code is held is not relevant from the copyright's perspective. Thus, code that is held in a book, file or circuit board is, as a rule, protected by copyright on the same basis.

However, not all codes are protected by copyright. Copyright extends only to expressions and not the ideas behind them. Monopolization of ideas and principles would hinder the software industry and obstruct progress. Thus, parts of code that are based on ideas cannot be protected by copyright. For example, the logical principles and algorithms of a program, and the syntax and semantics of a programming language are not protected by copyright in so far as they are considered ideas and principles.

From the programmer's point of view, a computer program is much more than a set of commands. Usually it is more about the architectonic design of interfaces between code structures and different modules than writing mechanic commands. Consequently, an often visited question in legal literature is whether source code architecture (modular structure and interdependencies) can be protected by copyright.

In principal, source code architecture can be protected by copyright as a computer program's preparatory material. According to the directive on the legal protection of computer programs, the preparatory materials of a computer program are also protected by copyright. Preparatory material refers, among other things, to flow charts that outline the program's logical structure. There is little experience in implementing the directive, and it is not completely consistent.  In addition, the conditions for the application of the directive vary from one country to another. For example, in the United Kingdom program architecture is protected by copyright – but not as a computer program. On the other hand, in the United States program architecture is not usually protected by copyright. In practice it often depends on, for example, whether a specific flow chart meets the general conditions for copyright protection, i.e. whether it exceeds the required level of originality.

The protection of a graphic user interface by copyright is also to some extend ambiguous. If the general conditions are met, the graphic layout of a user interface can be considered to constitute a graphic work. Therefore, the user layout of the interface, or parts of it, may be protected by copyright if they exceed the required level of originality. However, there is no specific guideline regarding the protection of user interface layouts. Related case law is inconsistent.

Often, attempts to seek so-called "look and feel" protection for computer programs have not succeeded. The case Navitaire Inc. v Easyjet Airline Co & Another 2004 discussed the copying of a low-cost airline reservation system. Navitaire accused Easyjet of infringing upon the copyright protecting the company's reservation system. Similar elements included, among other things, the main menu layout, the reservation forms and the commands entered on the forms. According to Navitaire, Easyjet had carefully studied the program structure and created software that from the user's perspective was identical in layout and functionality to that of Navitaire. However, the computer program's written code had not been copied (non-textual copying). The court decided to dismiss most of the charges. According to the court, copyright only protects a computer program's written code in the form it is expressed. Similar programs can be created in countless ways and programming languages. Therefore, it would harmfully restrict competition to extend the exclusive right arising from copyright to all forms of code that could be used to create a particular program. According to the court, Easyjet had only copied Navitaire's business logic, which is not protected by copyright.

The author of a computer program is always the natural person who actually wrote the source code (the programmer). §40b of the Copyright Act contains special provisions relating to the transfer of copyrights to computer programs created in the course of duties in employment relations.

According to §40b of the Copyright Act: "If a computer program and a work directly associated therewith have been created in the course of duties in employment relations, the copyright in the computer program and the work shall accrue to the employer." 

This provision relates to computer programs created during employment. The purpose of the provision is to facilitate cooperation and trading between software companies and to protect the interests of the program's users. The characteristics of employment are detailed in the Employment Contracts Act. According to the Act, employment refers to an employee agreeing (in an employment contract) to personally perform work for an employer under the employer's direction and supervision in return for pay or some other remuneration. The section applies also to computer programs created during public service relationships. Another condition is that the computer program has been created in the course of fulfilling duties related to the employment (or public service relationship). It is clear that if, during vacant time, an employee creates duty unrelated computer programs that are not related to duties, any related rights are not transferred to the employer on the basis of this provision. Ultimately, employees' duties are usually determined in employment contracts. In practice it can be difficult to assess this aspect, for example, if the duties have been agreed upon verbally. Therefore it might be a good idea to explicitly agree to what extent copyrights of computer programs created during employment are transferred to the employer.

The transfer of copyright, which arising from the provisions of the Employment Contract or Copyright Act, applies to both the computer program and any directly related works. Works directly related to a computer program include, among others, text files and other documentation. The provision grants the employer the exclusive right to control all economic rights to the extent required by the ordinary conduct of its business. Thus, the provision grants the employer the right to adapt the work and transfer rights in certain cases without limitations (e.g. to its partners).

Copyright is a discretionary right, and subject to agreement. Copyrights to computer programs, too, can be transferred by contract. Thus, it can be agreed upon, that the employee's copyright to a computer program is not transferred to the employer or that it is transferred only partially to a lesser extent than provided for in the Copyright Act. 

Teaching and Research in Universities

The copyrights to computer programs and directly related works created by autonomous authors in the course of university teaching or research activities are not transferred to the employer. This is the case if the author is a researcher or a teacher. Also, the research work must be carried out autonomously. As a rule, rights related to commissioned research assignments are transferred to the employer. This is because during commissioned research work, the researcher works under the employer's direction and supervision and therefore it is logical to apply provisions that relate to ordinary employment. This exception applies to researchers and teachers in universities but not in universities of applied sciences. 
In practice, it can be rather difficult to determine whether a particular activity falls within the scope of the exception or not. To avoid disputes over interpretation, all rights should be agreed upon case by case and project by project.

A company or some other legal person can never be the author in the meaning of the Copyright Act. The programmer has the discretionary right to transfer his copyrights to a company. Drafting only specifications or guidelines does not create copyright to a computer program. For example, drafting and designing computer program architecture, definitions and specifications as part of a software project does not create copyright to the computer program created during the project. In this case, too, the copyright is created by the physical person who actually writes the source code.

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Master and Margarita, a work by Nuno Correia, researcher at Media Lab.                      
 

According to the Copyright Council's opinion 2007:3, drafting specifications does not create copyright to the computer program created on their basis.

Various types of cooperation are very common in the software business. Nowadays almost all computer programs are written by several programmers or the programming involves some type of group work.

Joint Work

According to the Copyright Act, if the work is created by two or more individuals together and their contributions do not create separate works, they will hold copyright to the work jointly (joint work). Thus, if the contributions of the programmers writing the program are not separable, they will jointly hold copyright to the computer program. An example of a joint work is the open source operating system Linux that has been created over time by numerous programmers.

Exploiting a joint work requires permission from all of its authors. Thus, licensing a joint work computer program requires obtaining permission from each author (programmer). Therefore, it makes sense to draft a written contract on how the rights are exploited before entering into cooperation in order to prevent a situation where one of the authors can prevent others from reasonably exploiting the jointly created computer program.

Collective Work

A work is called a collective work if it is created through the input of more than one author and the authors' contributions form independent works.  For example, very often games will combine code, graphic works and musical works. In this case, each author (programmer, graphic artist, composer) control their part independently.

 

 

According to the Copyright Act, moral rights are, as a rule, inalienable. Moral rights are firmly attached to the author's person and to the protection of the work's original nature, and therefore the author cannot bindingly waive them even by agreement. Moral rights remain with the programmer of a computer program even if his copyright is transferred to the employer. However, the Copyright Act allows waiving moral rights in relation to the use of a work that is limited in scope and nature. Therefore the programmer can bindingly waive his moral rights if the way the program is used and the context it is used in are clearly defined. Moral rights to computer programs are not protected everywhere. 

Right to attribution

Copyright protects the author's name. According to the so-called right to attribution, the author's name should be acknowledged, in accordance with proper usage, when the work is reproduced or made fully or partially available to the public. Thus, the name of the computer program's author must be acknowledged in accordance with the principle of proper usage when copying the program or distributing it to the public. This protection is not absolute and depends on the prevailing practices in each industry. Thus, proper usage does not always require acknowledging the author's name. For example, software produced by large software companies usually cites the company's name only. On the other hand, the prevailing practice in universities is that acknowledging the author's name is part of proper usage.

Right to Integrity of the Work

Copyright also protects the author from infringing alteration of the work. According to the so-called right to the integrity of the work, the work may not be altered in a manner that would infringe on the author's literary or artistic integrity. As a rule, computer programs are also protected from infringing alterations. However, according to the legislative history of the Act, alteration of a computer program is very seldom considered infringing. 

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Overview of Economic Rights for Computer Programs

 

The economic rights are protecting the copyright holder's interests to exploit their work, under the terms the copyright holder consider appropriate. The economic rights cover reproduction, making a work available to the public and adaption. In the following, these three aspects are further opened up.

Reproduction

Within the limits imposed in the Copyright Act, copyright gives its holder the exclusive right to control the work by reproducing it. Partial and full, direct and indirect, and temporary and permanent duplication of a work are considered reproductions, regardless of the method or format employed. Reproduction rights, or copying rights, are rather extensive and cover basically all the ways in which a computer program can be copied nowadays. For example, according to the directive on the legal protection of computer programs, authorization by the author is required when the copying involves "loading, displaying, running, transmission or storage of the computer program".

Making a Work Available to the Public

Copyright gives the rightholder the exclusive right to make the work available to the public. According to the Copyright Act, a work is made available to the public when it is performed in public, when copies of it are offered for sale, rental or lending, or are otherwise distributed to the public and publicly exhibited. The aim has been to include in the Copyright Act all the current means that can be used for making a computer program or some other work available to the public. With regard to computer programs, this often relates to selling and renting copies of the program.

The exclusive nature of the right applies only to making the program available to the public, i.e. when the group of users is sufficient. In case law, "the public" has been interpreted as a group of users which is not predetermined. In other words, this refers to a situation where basically everyone can access the work.

In exception, the exclusive right to make the work available to the public applies only to the first instance in which the copy in question is sold, when this is done with the copyright holder's consent. Consequently, copies of the work in question may be further transferred without the copyright holder's consent. The exception applies to selling only. If a copy of a work is transferred in some other way, for example, by licensing the exclusive right does not expire, because this case represents a transfer of exploitation rights. In practice it may be difficult to determine whether a particular case involves selling or transferring the exploitation rights. However, the actual nature of the transfer is decisive. Transferring a copy of a work to a buyer without limiting the period of use in any way, is considered selling the work.

Adaptation

The copyright holder has the exclusive right to dispose of the work by making copies of it and by making it available to the public, in either the original or an altered form, in translation or adaptation, in another literary or artistic form or by other technical means. Thus, the rightholder's exclusive right extends to computer programs that have been altered in any way described in the Act. The Copyright Act recognizes three types:

1) Minor alteration of the work that does not exceed the required level of originality. This type of alteration does not express creativity and is not essential from the right holder's point of view. The person making the alterations has no rights over the altered work, and consequently, it is not in the interest of the right holder to prohibit such alteration of the work, ad has not the right to do so. For example, correcting minor misspellings can be considered minor alteration of a work.

2) Alteration leading to an adaptation where the person making the alterations holds copyright to the adaptation. The person making the alterations may not impose restrictions on his own work in a way that infringes on the copyright of the original work. In other words, the rights of the person making the alterations are secondary to the rights of the original right holder. This is why the person making the alterations needs permission from the right holder of the original work to create an adaptation. For example, adding new functions to a computer program could constitute alteration leading to an adaptation.

3) Free adaptation that leads to a completely independent new work. Copyright does not extend to ideas, and using original works as inspiration is allowed. In this case, the person creating the adaptation holds copyright to his work independent of the original work's copyright. According to legal literature, for example algorithms can be rewritten through free adaptation. This can be done by creatively writing a shorter and faster algorithm or using a programming language that has a completely different syntax.

Necessary Copying

According to the Copyright Act: "Any person who has legally acquired a computer program shall be entitled to make such copies of the program as may be necessary for its use for the intended purpose."  This provision is not peremptory and exceptions to the right to make copies can be made by agreement. In this case, general contractual principals are applied. Making copies may be restricted, e.g., by a license agreement, in which case the decisive factor is whether the agreement is considered unfair to the user; if so it can be ignored.

Necessary copies can be made only by individuals who have legally acquired the computer program. A computer program that is acquired through sale or similar legal transfer is considered legally acquired. The decisive factor when considering the legality of the transfer is whether the program has been manufactured and brought into circulation with the copyright holder's permission.

As such, the Copyright Act does not impose any restrictions regarding the number of copies made of a computer program. On the other hand, it requires that each copy must be necessary for the program's use for the intended purpose. The program's intended purpose is ultimately expressed in the agreement, e.g. in the terms and conditions of the software license. For example, copying a program to several users is not allowed on the basis of a single workstation license. Nevertheless, the Act allows producing one back-up copy of any program.

Permitted Alteration

According to the Copyright Act, anyone who has legally acquired a computer program has the right to make such alterations to it as may be necessary for its use for the intended purpose. The right to make alterations is not absolute, and can be prohibited, e.g. in a license agreement. However, in case law the right to correct minor errors has been considered an absolute right that cannot be restricted by agreement.

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Photo: Jarno Elonen
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Supreme Court decision KKO 2008:45 offers a good example of what kinds of alterations can be made to a legally acquired program. The case concerned a computer program controlling the production line for Karelian pasties. The bakery, that had legally acquired the program in question, made alterations to the program that became necessary due to changes in the equipment. The decision discussed whether making the alterations was permissible. According to the Supreme Court, the "intended purpose" of a computer program should be interpreted according to what purpose the program has been acquired for and how it is usually used in each specific case. As the program's intended purpose was not affected by the alterations made, the Supreme Court considered the alterations permissible.

Studying a Program

According to the Copyright Act, any person who has the right to use a computer program is entitled to observe, study, or test the operation of the computer program in order to determine the ideas and principles underlying any element of it. Any such observation, study, or testing must be done while engaged in the act of loading, displaying, running, transmitting or storing the program.

This provision of the Copyright Act is provided as clarification, because copyright does not protect ideas or principles – it only protects the original form of expression. The purpose of the provision is, therefore, only to establish that any observation, study, or testing accordant with the Act cannot be blindingly prohibited in a licensing or user agreement. Any such condition is not binding to the user who has legally acquired the program. The only precondition relating to the study of a computer program provided for in the Act is that it must be done within the context of the program's ordinary operation. Thus, making a copy of the program in order to study it is not allowed.

"Reverse Engineering"

The Copyright Act allows – when certain conditions are met – the reverse engineering or decompilation of a computer program. When the conditions of the Copyright Act are met, the right to reverse engineer a program is absolute, and cannot be restricted by a license or any other agreement.

According to the Copyright Act, the reproduction of the code of a program and the translation of its form are permissible, provided that these acts are an indispensable means of obtaining the information whereby an independently created computer program may be made interoperable with other programs. In addition to the requirement of indispensability, the reverse engineering must fulfill three further conditions:

  • Reverse engineering must be performed by a person who has the right to use a copy of the program
  • The information necessary to achieve interoperability must not have previously been readily available
  • Reverse engineering must be confined to the parts of the original program that are necessary to achieve interoperability.

The purpose of this provision is to ensure interoperability with other software products. It would not be fair to the program's user if considerable amounts of money in various programs had to be invested only to find out that the programs are not interoperable, and thus practically useless.  This is why interface data (parts of a program that support interoperability and make it possible to connect the program to other software) is often as valuable as the actual source code data.

In practice, the person performing the reverse engineering must be a license-holder or have some other right to use the program. On the other hand, anyone with the right to use the program can commission the reverse engineering to a third party. In this case the authorization must be explicit. Reverse engineering is prohibited if the information is otherwise readily available, for example, if the information can be found in the operating manual of the computer program. In practice, reverse engineering is also not allowed if sufficient information can be requested from the right-holder.

Information obtained through reverse engineering may not be used for any other purpose or released to any third party, unless it is necessary to achieve interoperability. In other words, the information may not be transmitted to any third party unless they also need to examine interoperability. According to the legislative history of the Copyright Act, information thus acquired may nevertheless be used to a certain extent for developing new and independent programs. Exploiting the information is possible as long as the copyright of the original program is not infringed.

Copyright holders of computer programs can trade their rights by either transferring or licensing them. "Transfer' refers to the permanent "sale" of the rights, which is common, e.g., with customer-specific projects. Rights can also be transferred permanently either fully or partially, where some of the rights remain with the author. According to the Copyright Act, moral rights can be waived only to a certain degree, and so, in practice, copyright holders cannot waive all their rights even in case of full transfer.  Moral rights can be waived only with regard to a clearly identified use, e.g. in relation to a product advertisement. Economic rights, on the other hand, can be transferred fully. In the software products business, full and permanent transfers would naturally not be in the interest of the right-holder in most cases. The most profitable and common option is to transfer clearly defined exploitation rights, or a license, to the program.

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Full and partial transfer of copyright

For information on limited, open source and creative commons license strategies please view article 'License Strategies' . 

 

License Agreements

License agreements have traditionally formed the foundation of the software products business. The purpose of a license agreement is to define the rights and obligations of the parties and the terms and conditions of use for the software product and related services. Licensing is based on the Copyright Act that stipulates that the transfer of a copy shall not constitute a transfer of the copyright, unless specifically agreed to the contrary. In other words, transfer is, as a rule, always partial and copyrights and other immaterial rights remain with the right holder.

With a license agreement, the copyright holder transfers to the license holder the limited right to use the copyrighted object according to the terms and conditions of the license agreement.  The agreement can limit the transferred right to a certain area, period or purpose. Thus, the right-holder can customize the license to meet the needs of individual license holders and price the right to use accordingly. License agreements seldom cover only immaterial rights. Often they are mixed agreements that contain other terms and conditions not related to copyrights or other immaterial rights.

Service Agreement

Computer programs can also be licensed as online services. In this case it is not a license agreement but a service agreement. As with license agreements, service agreements define the right to use a software product, but the program is sold as a service. 

Regardless of whether the agreement is called a license agreement or a service agreement, the actual nature of the agreement is ultimately the decisive factor. The purpose of both service agreements and license agreements is to give one of the parties the limited right to use a copyrighted computer program in accordance with applicable legislation and the agreement.

As in any business, agreements in software product business can be drafted individually for each particular case or by using standard policy conditions drafted by one of the contracting parties. If the license agreement is drafted separately on the basis of contract negotiations, general contractual principles must be observed. As a rule, the same principles must naturally be observed also with relation to SPC agreements. However, given technological development the practice of using SPCs in the software product business has given rise to certain peculiar characteristics which, in places, extend beyond general contractual principles. In the software products business, typical SPC techniques include shrink-wrap, click-wrap, browse-wrap and GPL licenses.

Shrink-wrap

Shrink-wrap is the oldest SPC agreement technique in the software business. The name shrink-wrap comes from the industrial manufacturing process, in which transparent cellophane is wound tight around a product package. The buyer/licensee can read the license conditions through the transparent film. According to the conditions, opening the package is interpreted as acceptance of the license agreement.

Shrink-wrap conditions may be available on a separate sheet inside the software product's package or in the user manual. The thing all shrink-wrap agreement techniques have in common is that opening the software package, installing the software or the first use of the software creates a contractual commitment. The only way to reject the agreement is to return the software to the seller before opening the package or using the software.  The seller will then refund the software's price to the buyer.


Photo: Laurent Fintoni

 

Click-wrap

The Click-wrap agreement technique (or "click-through") is based on the shrink-wrap  technique. According to the license conditions, contractual commitment is created at the first use of the software when the buyer/licensee accepts the terms by pressing a button on the screen. The buyer/licensee has the opportunity to read the license terms and conditions on the computer screen before pressing the button. According to the license agreement terms and conditions, contractual commitment is created even if the buyer/licensee does not read them. Rejecting the license is done by pressing the "reject" button or by not pressing anything. In that case the program will not run or install. Click-wrap terms and conditions used on internet pages are often called web-wrap.

With Click-wrap agreements the licensee always has the opportunity to read the terms and conditions before accepting the agreement and to find out his rights and obligations as a party to the agreement. Therefore, as a rule,click-wrap agreements can be considered as binding to the contracting parties.

The agreement may be void only if it contains conditions that from the weaker party's point of view are unusual or strict or if it contains particularly ambiguous conditions. Such conditions may be ignored or interpreted to the detriment of the party who drafted them.

Click-wrap agreement in Spotify

 

Browse-wrap

The browse-wrap agreement technique is based on the click-wrap technique but the method of accepting the terms and conditions has been taken even further. With the browse-wrap technique, contractual commitment is created without anyone having to press a button. Instead, the licensee is given the opportunity to read the license agreement terms and conditions which are made available, e.g., at the bottom of an internet page. On sites that are in English, they are often accessible via a "terms and conditions" hyperlink.

In light of the general contractual principles, the validity of browse-wrap agreements appears questionable. It is questionable whether the terms and conditions have come to the other party's knowledge and whether he or she has really had the opportunity to read them. However, there is no Finnish case-law regarding the question whether such terms and conditions are binding, and foreign case-law is not consistent on the issue. Whether such agreements are binding is determined on a case-to-case basis.

GPL

GPL (General Public License) is a free license software, which allows user to share and modify the software. 

According to the Copyright Act (404/1961), a person who has created a literary or artistic work shall have copyright therein. The expression "literary or artistic work" includes all literary, scientific and artistic products, regardless of the manner or form they are expressed in. Therefore, video, computer and other games and their components are protected by copyright if they exceed the required level of originality.

Copyright requires that the work exceeds the so-called required level of originality. In other words, the work must be an independent and original product of the author's creative work. According to the general rules for interpretation created in case law, the required level of originality is exceeded if it can be assumed that no-one else would have produced a similar work, had they undertaken to create one. There are no other requirements to achieving copyright protection. Ultimately, whether or not the required level of originality is exceeded is decided on a case-to-case assessment of the entire work.

Copyright is always credited to the physical person or persons who have created the work. Thus, in case of video and computer games the copyright is credited to the author(s) of the game. About computer programs created during employment, see section Copyright holder.

Games are usually so-called collective works where the different elements of a game (music, effects, graphic works, multimedia works, computer programs and databases) are protected by copyright independent of the aggregate work. Subsequently, the author or authors of each component control their work separately. However, it is customary to draft a written agreement detailing how the copyrights are divided between the individual authors of the game.

  
Lies and Seductions game credits

 

Background of game copyright
 
As such, video and computer games are a new phenomenon on the market which has evolved rapidly. Games have not always been protected by copyright and in general, game-related case law became established only at the end of the 1990's. There have been three clear trends relating to the copyright protection of video and computer games:
Initially the copyright protection of games was widely rejected. This was explained mostly by referring to the games' technical nature and lack of originality and creativity.
Later on, copyright was considered to only cover games as computer programs or simultaneously as computer programs and audiovisual works.
Nowadays games are considered partly copyrighted computer programs and partly audiovisual works.
 
Video and computer games consist of computer programs, databases and different audiovisual works. The moving image and sound in the games are controlled by computer programs and databases. The different parts of a game, i.e. computer programs, databases and audiovisual works, may be protected by copyright separately. This means that the copyright of a singular part of a game may be infringed upon independent of the other parts. Thus, infringement upon the copyright of a computer program included in a game does not necessarily entail infringement upon any audiovisual work included in the game.
 
According to the Copyright Act, computer programs are protected by copyright as literary works. In other words, copyright protects primarily the written code of a computer program. Protecting games as computer programs would create a problem for their authors since a protected code can always be rewritten in a different way without infringement of copyright. Thus, another important aspect is to what extent the audiovisual components of a game are protected by copyright and other immaterial rights. The copyright of computer program is discussed in more detail above.
 
Like individual games, the audiovisual components of a game can be protected by copyright either as a complete work or as separate, smaller parts. In international case law, the audiovisual components of games were considered to be protected by copyright at a relatively early stage. In the early 1990's, courts in the United States repeatedly came to the conclusion that the audiovisual elements of video and computer games such as Pac-Man were audiovisual works protected by copyright.

 

Player's Role

Nearly all video and computer games are based largely on interaction. Players can influence the progress of the game in many different ways and control their characters in a world created by the game's authors ("Play mode"). On the other hand, games also contain parts where the players have limited influence over the game's progress ("Attract mode"). The players' influence over the progress of the game may also be limited to zero, in which case the players must content themselves with watching the game's plot unravel as in a film ("cut scenes", "in-game movies" or "cinematics").

Copyright provides protection to creative expression regardless of the way or form it is presented in, and includes either the original or altered form. Therefore, the players' ability to influence the progress of the game and to control their characters is of no significance when it comes to copyright. The players' role in the game can be seen as dynamic: they can move within the world created by the game's authors but not freely as they please and only within the confines determined by the game's authors. Thus, each step taken by a player has been well thought out in advance, and players cannot create anything independent or original within the meaning of the Copyright Act even if they wanted to. With regard to copyright, the only significant issue is whether the individual elements of the game world created by the game's authors exceed the required level of originality.

With games where the players are supposed to create or build something new (especially if this takes place on the internet), the relationship between the player and the game's copyright holders is determined in a license agreement. This is the case with games, such as Second Life and Habbo Hotel. 

 

Graphic Design

Nowadays games often contain advanced and complex graphic design that is, in most cases, protected by copyright. In order to be protected by copyright, the graphic design must exceed the required level of originality, i.e. it must be independent and creative. The required level of originality is exceeded if it can be assumed that no-one else would have produced a similar work, had they undertaken to create one.

The game's visual background can be protected by copyright, for example, as a series of images, i.e. a graphic work. Images can also be protected by related rights. The protection of images is discussed in detail under the headings "photograph" and "graphic design".
 
Other Parts of Games

Any other parts of games, such as 3D modelling, icons, music, sound effects and texts, can be protected by copyright as literary or artistic works. The condition is that the part in question exceeds the required level of originality, i.e. it is an independent and original product of its author's creative work. The required level of originality is exceeded if it can be assumed that no-one else would have produced a similar work, had they undertaken to create one. Ultimately, whether or not a particular work exceeds the required level of originality is decided on a case-to-case basis.
In addition to materials created by the authors of a game, materials available on the internet and other public domain materials can be used when designing games. Usually there is no problem when authors use materials they have created themselves. This stems from the principle of copyright that "ideas are not protected", so in theory, any idea can be realized using a method that differs from the original work's method of expression without infringement of copyright.

When exploiting public domain materials, one should always check their origin as materials that are freely distributed may later on turn out to belong to someone. In this case, the copyright holder may demand compensation for the unauthorized use of his materials.

Person's Right of Personal Portrayal

One issue with popular sports games, such as NHL, FIFA and NFL games is to what extent characters based on professional athletes can be used without permission from the athlete in question. The Copyright Act does not provide a direct answer to this and often has to be found with the help of various fields of law, such as legislation relating to trademarks, privacy, criminal law, and competition law. However, one principal rule of sports is that if the athlete can be recognized from the character, his permission is required for using it in a game.

Nowadays it is common that professional athletes transfer the right to use their image for advertising and promotional purposes (at least partially) to their club or players' association. The club or players' association can then license the rights to the athletes' images to third parties. Players then get a certain percentage of the license fees thus collected.  

Trademarks

Trademarks grant the exclusive right to use a particular mark in trade as a symbol of certain products and services. "Exclusive right" means that the trademark holder has the right to prohibit others from using the same or a similar mark in trade as the sign of similar products or services. In the context of the games industry this means that, as a rule, any mark that can be considered the trademark of someone else cannot be used in a game or its marketing material without its holder's permission. It should be noted that while trademarks give their holders the exclusive right to use the mark in a certain area, using the same mark elsewhere may be considered an infringement of trademark.

For example sports clubs have protected their kits and emblems by trademark rights. These can be usod upon agreement with the club.
Games can also be viewed as important platforms for advertising. Nowadays games contain a lot of product placement and subliminal advertising. In this respect it is only about how much the trademark holder needs to pay the game's authors to have their mark visible in the game. Ultimately, this should always be agreed upon on a case-to-case basis.

 

On the basis of the Copyright Act, collections consisting of works, information or other materials can be protected on four different bases. Collections can be protected: 
  • as compilations in the meaning of the Copyright Act §5
  • as literary or artistic works in the meaning of the Copyright Act §1
  • as catalogues in the meaning of the Copyright Act §49, or
  • as special sui generis databases
 
Compilations
 
According to the Copyright Act, a person who, by combining works or parts of works, creates a literary or an artistic compilation shall have copyright therein. The author of the compilation is always the physical person who compiled the materials. Compilations referred to in the Copyright Act include, e.g., anthologies, collage images, various handbooks, newspapers and magazines, and collections of computer programs and various multimedia products. Creating a compilation always requires obtaining permission from the authors of the original works.
Various mash-up video and musical works can also be considered as compilations of sorts. These types of works are usually created by combining existing works or parts of works. The provisions pertaining to compilations probably apply to mash-up works only rarely because such works usually involve processing and adapting the works and parts of works to be combined to an extent that they can no longer be considered original works or parts of works. It should be noted, however, that according to the current Copyright Act, copying is one of the author's exclusive rights regardless of the technology employed, even if the copying took place only in an intermediate phase of the work.
 
Object of Protection
 
The copyright of a compilation applies to the compiled material as a whole, not the individual work used in the compilation. Therefore, the copyright of a compilation does not limit the copyrights of individual works included in it. Creating and exploiting a compilation always requires obtaining permission from the copyright holders of the original works.
 
Requirements for Protection
In order for a compilation to be protected by copyright, it must fulfil the requirements relating to the independent and original nature of the work. The way the work was compiled must exhibit creativity and originality. With regard to compilations, creativity and originality are expressed in the selection and arrangement of the materials included in the work. For example, mere mechanical collection of materials from some particular field and their arrangement into a typical order does not exhibit the author's creativity and originality.
 
Protection of Catalogues and Databases
 
§49 of the Copyright Act contains provisions relating to the copyright protection of catalogues and databases. The provisions provide protection to catalogues that compile a large quantity of data and databases which have required substantial investments to create. The protection of catalogues and databases in the Copyright Act is essentially different from the protection of literary and artistic works.  Originality is not a prerequisite for their protection; it is enough if the amount of data is large or the resources used for collecting the data are substantial. The reason behind protecting catalogues and databases is primarily the need to protect the human, technological and financial investments used for their creation. In other words, it has to do more with protecting investments than the products of creative work.
 
Protection of Producers
 
The copyright of catalogues and databases is credited to their producer. In this respect, too, the protection of catalogues and databases differs from the protection of works described in §1 of the Copyright Act. To be more precise, "producer" refers to the party that takes the initiative for and the risk over the investment. In most cases the company or organization where the work is created is considered the producer. Therefore, unlike copyright, the right to a catalogue or database can be credited to a legal person right from the start.
 
Catalogues
 
Object of Protection
A catalogue is protected in the meaning of the Copyright Act as a catalogue, table or program, or any other production in which a large quantity of data is compiled. The provisions relating to the protection of catalogues extend, e.g., to telephone directories, calendars, forms, tables, timetables and other directories. With regard to the right to protection, it is irrelevant whether the catalogue is in electronic or printed form.
 
It should be noted that copyright does not protect ideas or individual pieces of information which, as a rule, remain in the public domain. For example, the Copyright Council's opinion 1989:3 states that the protection of catalogues extends to the compilation and grouping of information, not individual facts that can be freely exploited and combined to create new works or catalogues. Thus, the provisions on the protection of catalogues apply only to combinations of large amounts of data and the related investments.
 
Requirements for Protection
In order to be protected, a catalogue must combine large amounts of data. There are no other requirements for achieving catalogue protection in the Copyright Act. Thus, the protection is not conditional on any criteria relating to the selection and organization of the content or its originality. It would not be practical to determine a precise rule on what should be considered a large amount of data in each particular case. Whether or not the requirement is met is decided on a case-to-case basis.
 
In its opinions, the Copyright Council has considered, among others, a name day calendar containing 752 names (decision 2005:15), a flag collection containing 197 flags (decision 2000:9), and a compilation of 200 document templates saved on a computer diskette (decision 1995:15)  to constitute catalogues in the meaning of the Copyright Act.
 
Databases
 
Object of Protection
The Copyright Act provides protection to databases on the basis of a special sui generis principle that differs from the protection of catalogues. A collection of works, data or other individual materials that allows individual access through electronic or some other means can constitute a database referred to in the Act regardless of its format. Both electronic and printed databases can be protected.
 
Therefore, all collections of literary, artistic, musical or similar works and collections containing text, sound, images, numbers, facts or data can be considered to constitute a database. As with the protection of catalogues, the protection of databases, too, applies to their content as a whole, not any individual works or pieces of information they contain.
 
Requirements for Protection
In order for a database to be protected, the obtainment, verification or presentation of its contents must have required a substantial investment. Substantial investment may refer to intellectual, technical, financial or some other major investment. "Obtaining of content" refers to the resources required to search for existing materials and combine them within a database. "Verification" refers to the resources required for checking the validity, authenticity and reliability of the data and the works that have been obtained when creating the database and during its operation.
 
Sometimes it is difficult to distinguish between the obtainment and verification of data and works. A database can also be in a format that does not allow access without implementing technical or other changes. "Presenting" refers to such processes which enable individual access to the database. In other words, this refers to the resources required for the systematic and methodological organization of materials and data.

The only prerequisite for protection is that any one of the content-related processes (obtaining, verification or presentation) is considered to constitute a substantial investment in the meaning of the Act. If we look at the opinions of the Copyright Council, the amount of investment required for obtaining protection appears to be rather easily attainable. The database's rightholder has the burden of proof concerning the question as to whether the processes related to the database have required a substantial investment. This means that the rightholder must be able to provide information about the labour costs of the persons who participated in the creation of the database or other costs related to the database's creation.
 
Rights Related to Protected Catalogues and Databases
 
Producers' Exclusive Rights
If a catalogue or database is protected, its producer – i.e. the party that takes the initiative for and the risk over the investment – has the exclusive right to control the entire content of the work or a part of the work that is considered substantial, evaluated qualitatively or quantitatively, by reproducing it and making the reproductions available to the public. However, as a rule, the producer does not have the right to control the individual pieces of information contained in the work.
 
Reproduction
The exclusive right that the catalogues' and databases' producers have covers the permanent and temporary reproduction of the work's entire content or its substantial part. "Reproduction" refers to the copying or duplication of the material regardless of the method employed. In other words, reproduction takes place whenever the material is somehow "transferred" from the original storage medium to a new medium. The transfer can take place electronically, by way of manual copying or in some other way. Copying can be permanent or temporary. The only difference between the concepts is for how long the reproduction is stored. Even temporary storage of the material, e.g., in the computer's cache is considered reproduction. Therefore the permanent or temporary nature of the reproduction is usually relevant only when assessing the seriousness of an infringement or the magnitude of related compensation.
 
According to the established interpretive guidance of the Court of Justice of the European Communities, the concept of reproduction should be interpreted broadly to include all unauthorized use without consideration of the nature, purpose or form of the act. Thus, the only decisive factor with regard to reproduction is whether contents of the database have been "transferred"  from the database storage medium to another storage medium. The contents can be transferred to a similar or different storage medium.
 
Making Available to the Public
The concept of "making available to the public" is also technology-neutral. The producer has the exclusive right to dispose of the work by making it available to the public regardless of the method employed. Thus, a catalogue or a database and their substantial parts can be made available to the public by distributing or renting copies or through online transfer or some other form of transfer.
 
Substantial Parts
There is seldom confusion about what constitutes reproduction of a work's entire content or making the work available to the public. On the other hand, it can sometimes be difficult to determine what constitutes a substantial part of the work. As a rule, permission from the catalogue's or database's producer is not required when copying or making available to the public only an insubstantial part of the work.
 
The substantiality of a part is assessed using both quantitative and qualitative criteria. Its quantity is evaluated in relation to the entire content included in the catalogue or database. The larger the portion of the material that has been copied or made available to the public, the more likely it will be considered a substantial part of the work. The quality of the section in question is evaluated with a view to the extent of the investment it has required. The larger the investment required for obtaining, verifying or presenting the part that is copied or made available to the public, the more likely it will be considered to constitute exploitation of a substantial part of the work. The result of such evaluations largely depends on the evidence provided by the catalogue's or database's producer. The producer can support his claim by providing proof of expenses related to the creation of the catalogue or database (such as the labour costs of employees who have participated in obtaining and verifying the information) or programming costs related to presenting the work. Ultimately whether a part is substantial or not is decided on a case-to-case basis. In its decision 1989:3 regarding a catalogue, the Copyright Council stated that extracting 10,000 pieces of product information from a register of 62,000 that was protected as a catalogue did not constitute copying of a catalogue or its substantial part.
 
The material contents of a database can be divided into thematic subgroups, or "modules". For example, a database can be divided into different branches of law, fields of arts or music styles. This also influences the evaluation of the quantitative or qualitative substantiality of the part in question. If the module constitutes a collection that is protected as a database, the part of the module that has allegedly been copied or made available to the public is compared against the size of the entire module.
 
Systematic Use of Insubstantial Parts
The producer's exclusive right does not usually extend to the use of any insubstantial parts of the catalogue or database. Thus, anyone can copy an insubstantial part of the catalogue or database and make it available to the public without infringing upon the provisions relating to the protection of databases. However, in theory this would allow circumventing the protection of catalogues and databases, e.g., by copying the work in parts that separately did not constitute substantial parts of the catalogue or database. That is why the Database Protection Directive  expressly prohibits the repeated and systematic utilization of insubstantial parts of the contents of the database. The Copyright Act does not contain a similar provision. This has not been considered necessary as the systematic use of insubstantial parts leads to the creation of a substantial part, which falls under the Copyright Act's current wording with respect to both catalogues and databases. Ultimately, the decisive factor is whether the use of the catalogue or database (copying or making available to the public) has led to the creation of a substantial part of the catalogue or database.
 
However, it should also be noted that the provisions of the Copyright Act regarding copyright and related rights can also prohibit any insubstantial use of the database. If the catalogue or database contains at least one work that exceeds the required level of originality, copying it always requires obtaining information from the relevant copyright holder.
 
Term of Protection
The term of protection for catalogues and databases is 15 years from the end of the year during which the catalogue or database was completed. For example, the term of protection of a database completed in 2010 will expire at the end of 2025.
 
If the catalogue or database is made available to the public before expiry of the term calculated from the work's completion, the term of protection is calculated from the year during which the catalogue or database was first made available to the public. For example, if the database was completed in 2010 but first made available to the public in 2015, its term of protection would extend until the end of 2030.
 
Lawful Users
According to the Copyright Act, any person who has the right to use the database is entitled to make copies of the database and perform any other actions that are necessary for accessing the database and the customary use of its content. A person who has been, by agreement, granted the right to use the database by the right-holder has the lawful right to use the database. The agreement does not necessarily have to be explicit; an implied permission or consent is also considered adequate.
 
For example, with regard to databases that are distributed on the internet with the author's permission and are available to all, it can be assumed that anyone who gets hold of such a database also has the right to use it.
 
Invalidity of Prohibition of Insubstantial Use
With databases it is common that users must enter into a license agreement with the right-holder to be able to utilize the database. The license agreement contains detailed terms and conditions relating to the database's use. To protect database users, the Copyright Act contains provisions that prohibit right-holders from extending their legal rights. According to the Act, any condition in the agreement between the user and right-holder which prevents the user from exploiting any insubstantial part of the database, evaluated qualitatively or quantitatively, is invalid. Any such contractual term or condition lacks legal effect directly on the basis of the Act.
 
Prohibition of Copying for Private Use
Machine-readable digital databases are considered particularly valuable and important objects of protection. This is why the Copyright Act prohibits copying them even for private use. According to the Copyright Act, it is not allowed to copy machine-readable databases for private use. However, such copying for private use is not considered a copyright violation. In other words, private copying of digital databases is prohibited but not punishable. Nevertheless, anyone violating the prohibition becomes liable to pay compensation to the right-holder in accordance with the Copyright Act's provisions on liability.
 
Overlapping rights
A work can be protected simultaneously by provisions pertaining to the protection of copyright, catalogues and databases. However, the different types of protection (copyright, protection of catalogues and databases) are not mutually exclusive. In practice, the protection that has first been established is applied. The Supreme Court decision KKO 2005:43 discusses overlapping rights. In its decision, the Supreme Court came to the conclusion that once the primary demand regarding infringement on copyright was accepted, the secondary demand regarding infringement of the protection of catalogues expired.

Case 1 "Copying for Private Use"
"You are copying a computer application to your own computer for private use. You justify the action to yourself in the following way: Under the Copyright Act, a published work may be copied for private use. May you copy the application under copyright law?"

No, you may not. The restrictive provision for private use under the Copyright Act does not apply to a computer application in a format that is legible on a computer, or the manufacture of a copy of an application, in a format that is legible on a computer, from a database in this format.

Case 2 "Selling a Computer Application"
"May you sell a computer application you have bought from the shop?"

This depends on the terms of the software license agreement. When you buy a computer application, what you are buying, more specifically, is a license agreement-defined user right to a copyright-protected computer application. 

Case 3 "A Computer Program Designed for a Company"
"Your friend asks you to create a software application for their company that provides billing services. You receive a paper from your friend, describing the computer application and the descriptions of the functions required of the application.  However, you do not sign any order or commission agreement.  Once the application is ready, you start to think about copyright issues. Will the copyright now be born directly to your friend's company?"

No, it won't. A copyright is primarily born to a natural person, e.g. the programmer, who in practice writes the application code and from whose creative input the application has been created. The author of the set of instructions or requirements is in no way considered the author of the computer application. Unless agreed otherwise, the copyright remains with you. The case may however be interpreted so, that your friend's company receives a user right in accordance with the company's normal operation to the application in question, based on a so-called tacit agreement. For this reason, it is advisable to draft a carefully written agreement on the transfer of rights with programming orders. 

Case 4 "Software Products Design with Open Source Applications"
"Does the use of open source applications in a software product company have any effect on the closed source software products, or their licensing conditions, which are sold to the company's customer?"

They don't have an effect. Open source applications may be used internally in a company, without it having any effect on the software products being sold to the customer. This is true, when the open source applications are not distributed (even as part of the applications offered to the customer). 

Case 5 "Offering Open Source Licensed Components"
"What must a software product company take into consideration, when using an externally drafted open source-licensed component as part of the software offered to a customer?"

When offering applications to customers, one must strictly follow the open source licensing terms and proportion them to the business strategy of the company. Terms of the license vary depending on the type of license. If the open source licensed component includes, for example, the so-called copyleft provision, the entire product must be licensed using the same open source license as the individual component. Breach of the provision usually means copyright infringement because, without a valid license, the company may not copy and distribute the component as part of their own product

It is possible that an externally drafted component violates a third party's copyright, for example, if its source code was copied in violation of the Copyright Act. However, this is almost impossible to detect.  Different types of applications are available to detect illegal copying, but in practice it is impossible to be absolutely certain about this matter.