Monday 25 June 2012

"Adaptation", software and databases: can you help?

A PhD candidate in IP law at a very highly-regarded academic institution in Germany has written to ask for a little assistance from this weblog's reasders. He explains:
"I am researching a section of UK copyright law and am reaching out ... for some help. The question I am concerned with is about section 21(3)(ab) and (ac) of the Copyright, Designs and Patents Act 1988. These sections give the authors of computer programs and databases the right to make adaptations, and adaptation is defined as an "arrangement, altered version...or a translation".

My question is: how have these words been interpreted in the UK? I am searching for case law on this provision but currently have not found any.
For the record, the relevant part of the provision reads like this:
"(3) In this Part "adaptation" -
(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;
(ac) in relation to a database, means an arrangement or altered version of the database or a translation of it; ..."
Offhand, this blogger couldn't think of any British decision, reported or otherwise, in which the meaning of "adaptation" has been discussed in relation to computer programs and databases.  However, he has the uneasy feeling that he may have missed something quite obvious.  Can anyone else help?

What might also be interesting is to hear of anyone who has based their own decision either not to take legal action or not to defend one on the basis of an interpretation or application of those words in this context.  If you have anything you can usefully add, please do so!

1 comment:

Anonymous said...

So far as adaptation of computer programs are concerned I would suggest the relevant part of the definition in the New Zealand Act would be a good starting point: section 2(1)(b) “In relation to a literary work that is a computer program, includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code, otherwise than incidentally in the course of running the program.”

This definition thus makes decompiling from object code to source code an adaptation (as well as the reverse – compiling). Also “translating” a program from one source language to another. Unfortunately our only case predates our current 1994 Act and this definition. I am awaiting judgment now in a case where adaptation of a program was claimed, but will only be able to report that in due course.

It must also be UK law that updating a program to create a new version would constitute the making of an adaptation. The definition in the 1988 Act is not exhaustive. From memory that proposition may have been mentioned by Jacob J in IBCOS. Such an act constitutes making a derivative work under US law.

As to databases, apart from translating the contents from one human language to another the meaning and scope of “adaptation” is far from clear. And does it mean database structure rather than database contents? The NZ Act does not offer a definition here and is of no help.