Legal framework for protecting computer programs in the ambit of intellectual property : a comparative study between Iraqi law (civil law) and English law (common law)

Abstract

The purpose of this thesis is to test the ability of Iraqi law to protect right holders of computer programs and the programs themselves. Comparison is made between Iraq’s Author’s Right Act 1971, as amended in 2004, and English law- especially Copyright, Designs, and Patent Act 1988, as amended. Examining the effectiveness of the rules in both laws for protecting CPs entails four main areas: the nature and legal status of computer programs, the scope of copyright protection guaranteed for computer programs by the legislation, other legal ways of protecting programs and harmonisation between European Union copyright laws and Iraqi author right law. The methodology is mainly doctrinal /comparative. Accordingly, this study has been divided into six chapters. Chapter One contains the general introduction and covers the main features for Iraq as a developing country and the study’s background; its importance, aims and goals, and methodology. Chapter Two examines the nature and legal status of computer programs. Many questions are raised in relation to their nature: are computer programs tangible or intangible things? goods, services, or something else? Should property subsist and if so which kind of property, if programs do not fit recognised kinds of private property, can they be deemed a sui generis? Finally, evaluation the ability of “property” as a way to protect the investment of CPs in Iraq. Chapter Three, test the provisions of copyright and author’s right in English law, Iraqi law and references other laws - US, French, and Egyptian. Iraqi law and the UK law deem computer programs to be a literary works, protected by author’s right/copyright. Iraqi law has started to be consistent with the WTO and TRIPs Agreement. Questions arise regarding the sufficiency of copyright/author’s right to protect computer programs. If not adequate, would other methods provide preferable protection? Chapter Four examines other techniques for protection: patents, contractual terms, trade secret law and trade marks. Chapter Five aims to make harmony between Iraqi laws, international laws and European Directives, to link Iraq with the communities which preceded it in the area of intellectual property. As well as legislation, there is scope for judicial harmonisation using s1 (3) of Iraqi Civil Code. Finally, Chapter Six presents the main results and conclusions and makes recommendations as to for improving the current legal situation.