A. INTRODUCTION

1. Introduction, scope and purpose. Even with the rise of the Cloud, SaaS, AI and digital transformation and the growing importance of data, we have perhaps got used in recent years to the idea of software copyright law being relatively stable, with the software directive in the EU and lines of cases in key jurisdictions on 'look and feel' settling around generally accepted and workable norms. But the hearing of the Google v Oracle case in the US Supreme Court (now scheduled to take place later in 2020 or perhaps even 2021) pulls the focus back to where the borders of software copyrightability actually now lie, and this, coupled with extraordinary and rapid advances in information technology we're now living through, prompted us to focus in more detail on what's happening in the software copyright and related spaces. And when we started to look at the detail, it struck us just how much there is going on. This was the rationale for our 23 April 2020 webinar on 'Algo IP: Legal Aspects of Software – 2020 Update', for which this white paper is a companion piece. Building on a collection of blogs on each individual topic, we look at:

  • the journey of Google v Oracle to the US Supreme Court, the copyright questions it raises and how the decision could impact software development whichever way it goes (Section B);
  • the UK SAP v Diageo case three years on, and what that has meant in practice for indirect licensing (Section C);
  • current open source software trends and a more detailed look at the Affero GPL and the 'as a service' world and the Cryptographic Autonomy Licence (Section D);
  • the questions of who owns IP in algorithms as computer-generated works (copyright) and computer implemented inventions (patents) (Section E);
  • the related question of the IP that arises in AI datasets, insights and outputs, with a particular focus on the growing importance of trade secrets (Section F);
  • recent copyright developments in the area of text and data mining (Section G);
  • recent developments in copyright and the communication to the public right (Section H);
  • the patent Troll threat to cloud IP (Section I); and
  • a quick crystal ball gaze at Brexit and what it may mean for Algo IP (Section J).

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