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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Photo: Jarno Elonen
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.
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:
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.
Full and partial transfer of copyright
For information on limited, open source and creative commons license strategies please view article 'License Strategies' .
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.
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 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
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
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 (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
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.
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 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.
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.