Computer programs are literary works under section 4(1)(a)(i) of the Copyright and Neighbouring Rights Act 2000, and are expressly excluded from the private copying exception by section 8(2)(d). Section 14 is the provision that applies instead.
Section 14(1) — what is permitted
Notwithstanding section 6(1)(a) and (c), the reproduction, in a single copy, or the adaptation of a computer program by the lawful owner of a copy of that computer program may be made without authorisation — provided that the copy or adaptation is necessary:
(a) for use of the computer program with a computer for the purpose and extent for which the computer program has been obtained; or
(b) for archival purposes and for the replacement of the lawfully owned copy in the event that the copy is lost, destroyed or rendered unusable.
Section 14 excepts both section 6(1)(a) — reproduction — and section 6(1)(c) — adaptation, arrangement or other transformation. That is necessary: installing, configuring and running software involves both copying and modification.
A computer program is defined in section 2 as a set of instructions expressed in words, codes, schemes or any other form, capable, when incorporated in a machine-readable medium, of causing a computer to perform a task. That covers source code and object code alike.
“The lawful owner of a copy”
The exception is available only to the lawful owner of a copy. Three consequences follow.
A person with an unauthorised copy has no rights under section 14 at all. They cannot install it, cannot archive it, and cannot adapt it.
Ownership of a copy is not the same as a licence. Most software is supplied under licence rather than sold. Whether a licensee is the lawful owner of a copy in the sense of section 14 will depend on the terms of supply — and the practical answer for most users is that the licence itself grants the necessary installation and backup rights, so section 14 is not needed.
The right is attached to the copy. Someone who lawfully acquires a copy — for example, on a resale permitted because the distribution right in section 6(1)(d) is exhausted once an authorised distribution has occurred — becomes the lawful owner and may rely on section 14 for that copy.
“Necessary” for one of two purposes
| Purpose | What it covers | What it does not |
|---|---|---|
| (a) Use with a computer, for the purpose and extent for which the program was obtained | Installing to a hard drive; loading into memory; configuration and adaptation needed to make it run on the user’s system | Installing on more machines than the program was obtained for; using it for a purpose beyond what was obtained |
| (b) Archiving and replacement | A backup copy; restoring from it where the lawfully owned copy is lost, destroyed or rendered unusable | Keeping the backup in use alongside the original; distributing the backup |
This ties the exception to the terms on which the copy was acquired. Software obtained for one workstation may be installed on one workstation. Software obtained for evaluation may be used for evaluation. Section 14 does not enlarge what was acquired; it makes the copying that is inherent in using it lawful.
Note also the word necessary. A copy that is convenient but not necessary for use or archiving is outside section 14.
Section 14(2) — the destruction obligation
No copy or adaptation of a computer program shall be used for any purposes other than those specified in subsection (1), and any such copy or adaptation shall be destroyed in the event that the continued possession of the copy of the computer program ceases to be lawful.
The first limb confines use to the two section 14(1) purposes. The second imposes an obligation to destroy the copy or adaptation once possession of the original ceases to be lawful.
That has practical bite in three situations:
On resale. A person who sells or transfers their lawfully owned copy must destroy any backup and any adaptation. Keeping the backup after transferring the original is a breach of section 14(2), and the retained copy is then an infringing copy.
On expiry or termination of a licence. Where continued possession ceases to be lawful, backups and adapted versions must go.
On disposal of hardware. Installed copies transferred with a machine require the same analysis — whether possession by the recipient is lawful, and what the transferor must destroy.
What section 14 does not permit
No decompilation or interoperability exception. The Act contains nothing equivalent to the reverse-engineering provisions found in some other copyright statutes. Copying object code in order to study or achieve interoperability is not within section 14, which permits only copies necessary for use or for archiving.
No rental or lending. Section 6(1)(e) gives the owner an exclusive rental and lending right in computer programs irrespective of the ownership of the copy. Owning a copy does not entitle you to rent it out. The one relief is section 6(2): the right does not apply where the program itself is not the essential object of the rental — the embedded-software case.
No communication to the public. Putting a program on a server for others to download engages section 6(1)(j) and is outside section 14 entirely.
No circumvention. Under section 29(1)(a), manufacturing or importing for sale or rental any device specifically designed or adapted to circumvent copy protection is unlawful and is assimilated to infringement for the purposes of sections 26, 27 and 28.
Under section 5(a), protection does not extend to any idea, procedure, system, method of operation, concept or principle, however expressed or embodied in a work. The code is protected; the function is not.
A competitor who writes fresh code that does the same thing infringes nothing under this Act. That is why software businesses also rely on contract, on confidentiality, and on trade marks registered under the Trade Marks Act (Chapter 385).
Where a business needs more than section 14 allows — multiple installations, server deployment, modification rights, source code access — the route is a written licence complying with section 20: in writing, signed by both parties, and explicitly naming every right granted, since section 20(3) excludes anything not expressly referred to.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 4, 5, 6, 8, 14, 20, 26–29
- Trade Marks Act (Chapter 385)
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.