Copying a computer program can be literal, where the program code itself is copied, in which case the two programs are written in the same computer programming language. Alternatively, copying can be non-literal, where elements of the program such as its structure, sequence of operations, functions, interfaces and methodologies are copied but the program code is not directly copied.
Literal copying occurs where a person copies an existing program by disk to disk copying or by writing out or printing the program listing, perhaps to key it into another computer at a later date. In either case, the person making the copy may make some alterations to the copy. These may be to disguise its origins or to enhance the program, for example, by adding some additional functions. Literal copying is relatively easy for infringement. Even relatively small programs will be the result of the programmer's skill, experience and judgment. The following case in the first to seriously consider the issues relating to literal copying of computer programs and lays down some important precedents for software copyright.
The law's recognition of non-literal copying is important because otherwise it would be too easy to defeat copyright protection of computer programs. With some works of copyright, it is an easy matter to distinguish between the literal and non-literal elements. For example, with a work of literature, perhaps in the form of an historical novel, the literal element comprises the words, sentences and paragraphs as expressed in print, while the non-literal elements, in which case they may have their own copyright independent of the copyright subsisting in the finished novel. However, in the absence of such materials, it is clear that taking the non-literal elements can infringe.
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