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Are algorithms copyrightable ? December 4, 2006

Posted by Imran Ghory in Copyright, Software development.

(disclaimer: I am not a lawyer, this article is personal opinion)

If I was asked a few days ago “can an algorithm be copyrighted ?”, I would have replied with the canned answer “no, of course not, copyright protects the expression of an idea, not the idea that’s expressed.”

However since reading Hart & Fazzani’s Intellectual Property Law (part of the Palgrave law series). I was no longer convinced so I decided to google to see if anyone else had discussed it. But other than the canned answer I gave above I couldn’t find any firm evidence supporting the uncopyrightable status of algorithms. And during my searches I found the submission policy of ACM Algorithms which clearly indicates that they at least believe some algorithms to be copyrightable.

Generally speaking if you translate a program from one programming language to another then you have to have permission from the original author of the program (in the same way you would need permission to translate a book from say English into Spanish). The Palgrave book specifically gives the example of translating from FORTRAN to COBOL as being a type of “adaptation” that requires permission. In Canada Apple Computer Inc v Mackintosh Computers Ltd. came to a similar conclusions.

So why should translating an algorithm from pseudo-code into an programming language be any different, I’m sure most implementations of binary search are based on text-book pseudo-code rather than derivation from first-principles.

The obvious counter-response for this has been that if an idea can only be expressed in one form then it’s not copyrightable. However in the UK at least this doesn’t appear to be true if the idea is sufficiently complex. In the case Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd (1994) which is one of the most important software copyright cases in the UK it was decided that “copyright cannot prevent the copying of a mere general idea but can protect the copying of a detailed idea” and this is a decision which has been referred to and affirmed in a number of court cases since that time.

And “detailed idea” is a concept which will almost certainly apply to most modern algorithms. As far as I know no-one’s ever taken an algorithm copyright case to court (possibly because such court cases over algorithms have traditionally been in the US where patent law can be applied instead of copyright), but it could just be a matter of time before it happens and possibly opens up a huge can of worms.



1. blucollar10940 - December 5, 2006

In the world of ideas, in general I would say ( anymore ) anything that can be considered your idea and your hard work ” should be ” copyright able. I am not a lawyer either, but now a days I think if you wrote it, worked it, or even thought of it, first to market ” IT ” has the rights to it, and you know what happens after you own it. Someone else does it after the fact, they have to pay you. Isn’t america great!

2. Evan - December 6, 2006

i also thought processes were copyrightable..wouldn’t algos fall under the concept of a process?

in non-software terms, think of metal works. don’t companies copyright the process for creating new metal alloys they come up with in the lab (or new plastic polymers for another example). while you can’t touch a piece of software like you can touch a piece of metal, i thought both were copyrightable.

just like you though, i am not a lawyer (let alone an IP lawyer). I’d be interested to read more if you find more information on the subject as it applies to software.

3. BlackWasp - December 6, 2006

I am not sure about copyrighting an algorithm but there are certainly precedents for the patenting of algorithms. The well-known example that springs to mind is Compuserve’s patenting of the GIF algorithm. http://lpf.ai.mit.edu/Patents/Gif/origCompuServe.html

4. CyanCode » Blog Archive » Code Links (12.06.2006) - December 6, 2006

[…] Theory: Are algorithms copyrightable ? « Imran On Tech (code theory codelaw) […]

5. Ethan - December 6, 2006

Yes, algorithms should be protected by copyright law because when dealing with advanced analytic software you are developing an algorithm (tool) to solve a problem. Just like any invention, there should be some form of protection for the person that “invents” this solution.

Along with my recommendation goes a warning… I think the law should come down hard on anyone that is plagiarizing ideas or being an “opportunist” to bend the copyright laws to serve themselves in a non-productive environment.

6. Lloyd Budd - December 19, 2006

Food for thought, I hope I never have to be certain.

7. Dan - January 31, 2007

What if you use “if(x==y) x += 3;”? I’ve used that before for one of my animation routines. Is it not an algorithm? What if I am indeed the first to use that sequence? Might I demand payment for copyright infringement?

So if I scale that to 20 lines of copied code, am I now in violation? I most definitely do not agree. If you use a binary search, you should have to pay Knuth? How about hash tables, jump tables, or quicksort?

So if I scale that to 200 lines of copied code, am I now in violation? A great many common algorithms take more than this. Again, shall we pay the contributor because of our plaguerism?

How about 2000 lines?

The problem comes to this: In programming, we have a very finite set of atomic steps that are available, and a very rigid structure which defines which steps may happen in which order while maintaining a working program. There are only so many different ways that code can exist and still function. If Microsoft or yourself or anyone else claims copyright on an algorithm, I intend to stand up for those giants whos shoulders they stand on.

I’m almost certain the person who invented the concept of addition was amongst my ancestors.

8. shane - January 17, 2010

Not a lawyer. Copyright protects creative expressions. From what I understand, the most optimized version of an algorithm possible (keep in mind not something where there is a tradeoff, but a clear ‘best’ is not copyrightable, this is the reason one author had to resort to a patent to protect his software.) If you can come up with something better they might well be f-ed.
Also look up Clean Room Reverse Engineering.
Ethan, … XKCD 481 This is not the place for moral arguments and the wielding of big sticks. Your argument reminds me of an angry mob long ago that attacked a company, even when the AUTHOR was defending them. Copyright is not a sword for the protection of your ideology, any more than it is a sword for the protection of mine. It is meant to protect the creative work of an author… and it’s application to algorithms is actually fairly incidental. In fact, it doesn’t even protect recipes (consider this, the list of ingredients as a list of variables, the steps as mixing instructions… it only protects the creative work within those steps. In short, simple enough algorithms should be unprotected).
Opportunist is a subjective term, it can describe those who survive, but barely, those who ideally believe idea’s should be free, and those who assault them. Please state that you’re not a lawyer first, and clearly state when your article is an opinion.
Obviously, by this criteria… the dividing line would be rather subjective… so expect judges to have a say.

9. shane - January 17, 2010

Update: Previous case relevant to the United States. XD Again, not a lawyer.

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