Copyright and Patents: the Difference
What is the difference between a patent and copyright, and why should I care for that matter?
A few months ago there was a debate in the developer chat rooms triggered by a survey done by Out-law.com, a legal services website. The survey found that a majority of developers were borrowing code, either by keeping their own libraries of code they had written for previous employers, or by using code posted by other developers on the internet. The advice given by Out-law.com was essentially that this practice was to be prevented if at all possible. The reaction from the developer community was that to prevent these practices would stifle initiative (because innovative code was built on the back of existing “standard” code), and make it more difficult for novice developers to learn their craft. Many responses mentioned “patents” in software programs, and it was clear that most developers were not clear what the difference is. That difference is very important indeed.
In most countries, intellectual property is governed by statute, and South Africa is no exception. You will commonly hear about three kinds of intellectual property: copyright, patent and trademark. We can eliminate the last right away. If you register a trademark, you are reserving the use of a certain name or design to yourself, for use as a brand for a good or service. Thus you may trademark the name of a soft drink, or the name of an accounting firm. Trademark does not apply directly to intellectual property in code. That said, once you have written your killer app, you may want to trademark its name as part of your branding exercise!
The two important forms of protection are thus patent and copyright. The first allows you to prevent others from using your ideas. If you invent a swimming pool pump that automatically keeps your pool topped up to a certain level, and no-one has invented something similar before, you can lodge your designs with the Patents Office and be granted a patent in that idea. No-one else can then make a pool pump using that design for as long as the period of the patent (twenty years in South Africa).
Copyright on the other hand doesn’t protect your ideas, but rather the expression of your ideas. Imagine that Shakespeare were still alive and had just written Macbeth. You would be in breach of copyright if you were to write a play that included the words
"To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day,
To the last syllable of recorded time;”
There are exceptions to this of course, such as if you included these lines as parody in your play.
There are several classes of work that can be copyrighted. Software code used to be protected as a literary work, but is now specifically protected by its very own sub-section of the Copyright Act. This means that if someone gets hold of the source code of your killer app, copies the code that implements the core functionality, and uses it to write a similar application, you could sue for breach of copyright.
But why not sue for breach of your patent too? The reason for this is that you can’t register a patent in computer software. The Patents Act specifically excludes computer programs. Sorry. The reasoning is that software gives expression to an idea: it is how you give your idea form, but is not the idea itself, and should therefore not be patented. There are exceptions to this though: software can not be patented alone, but can be patented if it forms part of a patentable system. Thus if you patent a hardware design, you can also patent the software that is necessary to make the hardware work. Another possible exception is that of the business process. There is no precedent for this in South Africa, but in the USA many companies have patented innovative software functionality not as software but as a business process. This practice has not yet been tested by the US courts, but as the US Patents Office isn’t as exhaustive as ours in vetting patents before registering them, it is likely that many of these patents will be found to be invalid if ever challenged in court.
Andrew Marshall
ELC
26 Jan 2005
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - info@e-lawconsultancy.co.za
