Computer Software and Copyright

5. WHAT IS NOT PROTECTED UNDER COPYRIGHT LAW?

Things like systems and processes may be protected under patent law, but not copyright law. Therefore, if a computer program provides a novel method for parsing digitized analog signals, only the actual program that embodies the method and incorporates the program logic and algorithms is subject to copyright protection, not the method itself. Remember, the program logic and algorithms by themselves cannot be copyrighted.

This may appear counterintuitive to a programmer. After all, the tough part of software development involves the conceptualization of program logic and algorithms. However, program logic and algorithms represent an idea for the purpose of copyright. Though the actual coding of the method is typically only a mechanical exercise to a skilled programmer, it does require creativity to express a concept, method, or idea with sufficient detail to create a platform sensitive, error free, and rigorous program. It is only this mechanical, but creative, expression that is subject to copyright protection.

5.1 An Idea Alone Is Not Protected

This is not as illogical as it may sound. If an idea were copyrightable, programmers, mathematicians and many other professionals the world over would have to "reinvent the wheel" constantly. The following example represents a situation commonly faced by programmers.

Example

Let's say that our Berkeley Lab programmer Cliff decides to work on a non-hacker project for chemists. He reads about a better way to calculate the area under a curve than that provided by traditional integral calculus. He uses the mathematical equation from the research article as the basis for a computer program to calculate the area under chromatographic elution curves.

Though the particular research article is subject to copyright protection, the mathematical equation alone is not subject to protection.

First, the author of the article had an idea for a method. This idea is not subject to copyright protection. Second, the author expressed that idea by a mathematical equation. This equation is also not subject to copyright protection. A mathematical equation is considered a "work of nature" and belongs in the public domain. Third, the author incorporated the equation into a research article that describes the method. It is only this particular manner in which the method and equation is described that is subject to copyright protection.

Therefore, Cliff has not violated any copyright by using the equation from the article, in his program. The resulting computer program that incorporates the equation is subject to copyright ownership that vests with the author of the program. Only the computer program that is fixed and written in a specific language and, in this case, is designed for chromatography, that can be copyrighted.

If a third programmer uses the equation for another purpose, and writes a different program in another language, the resultant work may be altogether distinct from the first and merit its own copyright.

Even if someone uses the same equation to write a program in the same language to perform the same function as Cliff did, Cliff's copyright may not have been violated. As long as the second expression is otherwise distinct from the first, a separate copyright may be established. This expression is based on the programmer's own style of coding, which represents his own unique expression of an otherwise mechanical process. Remember, the method represents an idea and cannot be copyright-protected.

Of course, courts generally decide whether one abstraction is sufficiently different from another for the two to be considered distinct expressions of the same idea. If the first programmer proves that the second program is identical or substantially similar to the first, then the courts may find copyright infringement.

Bottom line: what US copyright law wants to protect is the "literary expression," not the concept, not the idea, but the original, fixed, and unique expression.

*Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995.