Volume 7 Issue 2

Copyright Protection for Non-Code Elements of Software* 

Andrew Christie** & Kenneth Fong***

The infringement of copyright in a computer program by unauthorised copying of its code is a relatively straightforward legal issue. More complex is the issue of how far copyright extends to protect against copying of non-code elements of the program, such as its purpose and structure, its functional modules, and its algorithms and data structures. This article explores the extent to which such elements are and should be the subject matter of copyright protection. The authors postulate a framework for defining and categorising non-code elements of software, drawing a key distinction between those elements which are conceptual and those which are functional. Further distinctions are drawn between user interface and non-user interface elements, and between user interface elements which are visual and those which are not. Using this framework, the key international cases on copyright protection for non-code elements of software are analysed, and the outcomes of these cases are compared with the situation pertaining in Australia in relation to each type of non-code element. The analyses and comparisons undertaken by the authors suggest that conceptual non-code elements of software are not the proper subject matter of copyright. They also suggest that functional non-code elements of software should only be protected to the extent that copyright subsists in them in their own right; there should be no indirect protection of these non-code elements by way of the principle of non-literal infringement of copyright in the code implementing them.

* This article is based on a paper presented by Andrew Christie to the Business Law Education Centre one-day seminar on Developments in Information Technology Law, in Melbourne on 11 June 1996 and in Sydney on 17 June 1996.

** Senior Lecturer, Law School, University of Melbourne.

*** Research Fellow, Law School, University of Melbourne