Copyright Issues Relating to Customized Software

Abstract

The purpose of this paper is to study in detail the copyright issues relating to customized software, and to analyze the different laws relating to this area. The various copyright laws allover the world provide that the copyright in a work is initially owned by the author of the work. This is a simple enough statement of law, but it frequently presents significant problems when individuals and companies assume that they understand who the 'author' is and under what circumstances commissioning a work results in copyright ownership vesting in someone other than the author. This problem particularly manifests itself in the world of customized software creations. This essay tries to find answers to some very pertinent questions in this area. Firstly, it analyzes the viability of excluding customized software from the ‘work for hire’ doctrine. The software industry is unique, and deserves unique treatment under the doctrine. Computer software differs notably from other copyrightable subject matter. Much of the value of software comes from its utilitarian rather than its aesthetic aspects. Secondly, it inquires into the practicability of the commissioning parties being recognized as ‘joint authors.’ Joint authorship should not be predicated on the contribution of an 'abstract' idea acted upon by another. Conversely, an idea that has been developed in sufficient detail in effect dictates the ultimate expression, making the idea giver the sole author. Between these two rare extremes, the significance of the commissioner’s contribution of ideas depends on the quantity and quality of those ideas as embodied in his instructions to the contractor. Thirdly, it studies whether the source code should be mandatorily provided to the customer under the End User License Agreement. As per the current practice, usually, the software developers, as part of the End User License Agreement, provide only the object code to the customer, and not the source code. Source code control is especially important for customized software programs. Analyzing all these issues in great detail, the author comes to the conclusion that the copyright laws relating to customized software are heavily loaded in favour of the software developer, and need significant changes.

Keywords: copyright, software, customized

JEL Classification: O34