Legal Aspects of the Information Society. - Free Technology Academy

GNUFDL • 13 Intellectual property: authors' rights and copyright
It is not easy to define originality. Indeed, it constitutes the most disputed
matter over recent years in the continental tradition. The most orthodox tradition
of the system of Authors' rights requires a "trace of persona or personality"
of the author, although there is no unanimity in national legislations in
terms of the degree of originality that may be required.
The test of the originality of a work tends to have two aspects: the first is that
the work must be original of the author, in the sense that it truly should have
been created independently thereby, not copied from other work; the second
is that the work must contain enough creativity to not be susceptible of being
considered something mechanical.
Supplementary content
In the United States, for instance,
a work is required to
be incorporated in a tangible
means of expression, from
which it may be perceived, reproduced
or communicated
by any means, whether directly
or with the aid of a machine
or device.
In software, it is difficult to define when originality exists, as it is a utility creation, where
sometimes there is little room to manoeuvre. A low-level criterion has been chosen and,
in general, it is deemed sufficient for the software to be the result of a personal effort,
i.e., that it not be a copy, for it to be considered original.
The copyright system generally requires a lower level of originality and solely
requires that the creation should be the result of a personal effort, i.e., that
it should not be copy. To the extent that the origin of the software may be
attributed to the author, i.e., that it has been created independently and has
not been copied from other works, it would be considered original.
2.3. Author's rights and software
Initially, computer programs were not marketed separately, as they were sold
with the hardware and their protection was confused with that of the overall
product sold, the computer (a phenomenon known as bundling, which has
once again acquired importance with mobile devices and other such items).
Furthermore, there were no technologies that could be used to copy them or
use them outside of the computer in any general way, so there was no great
concern for their protection.
The need for protection began to be seen in the late seventies, when, by reason
of the United States antitrust legislation, IBM was forced to separate its
hardware and software businesses. Consequently, computer programs began
to be marketed in separate mediums and the autonomous protection of this
technology, extremely vulnerable to copy, was warranted to protect the investments
made in its creation and also as a means of encouraging the dissemination
of computer programs to larger numbers of people.