問1
頻出度★★★
コンピュータプログラムの開発や作成に関する行為のうち，著作権侵害となるものはどれか。
平成23年度 特別試験 ITパスポート試験 問1
ストラテジ系法務 › 知的財産権
This question's explanation and your answers so far.
解説
問 1
- ア
正解 The correct answer is ア. What copyright law protects is “a creative expression of thoughts or feelings”, that is, the concrete expression itself. HTML source is a concrete expression that its author selected and wrote in order to realize the structure and presentation of a web page, and if creativity is recognized in it, it is protected as a copyrighted work (treated as a program work or a literary work). In ア, HTML source written by someone else and downloaded from the Internet is diverted as it is, without obtaining permission, to create another web page. Copying and using another person's work without permission infringes the right of reproduction, and even if part of it is rewritten and rebuilt, it infringes the right of adaptation as long as the essential features of the original expression remain. Note that the fact that a browser can “view source” and that copying is technically easy does not mean that permission to use has been given. In addition, reproduction for private use (Article 30) is limited to use within a personal or family circle, so publishing and using it as a separate web page does not fall under that exception. Therefore, among the four acts, the one that constitutes copyright infringement is ア.
Incorrectイ
Copyright does not extend to ideas themselves (the expression-idea dichotomy, known as the idea-expression dichotomy). A notion discussed on a bulletin board, such as “it would be good to have this kind of mechanism” or “it could be processed this way”, is still at the stage of an idea that has not yet taken concrete expression, so it is not a copyrighted work. If a person builds up the expression called a program by themselves on the basis of that idea, the program produced is that person's own work. It would be another matter if text posted on the board were copied and used as it is, but this choice goes no further than creating a program based on an idea, so it does not constitute copyright infringement.
Incorrectウ
Because the program was one the person themselves wrote during their student days, the copyright in it belongs to that person. Reproducing or modifying a work in which you yourself hold the copyright in order to create a new program is not an act that infringes another person's rights. Therefore, creating from it a program for improving the efficiency of company business operations does not constitute copyright infringement either. Keep distinct, however, that a program written as part of one's duties at an employer may fall under a work made in the course of employment (Article 15), in which the corporation becomes the author, so where the rights lie changes depending on when and in what capacity it was written. In this choice the program was written personally during student days, so the rights belong to that person.
Incorrectエ
What a flowchart shows is the procedure for solving a problem, that is, the solution method (algorithm). Article 10, Paragraph 3 of the Copyright Act provides that protection for a program work does not extend to programming languages, conventions (protocols), or solution methods, so algorithms are not protected by copyright. Accordingly, reading and understanding a flowchart published in a purchased book and writing a program by oneself on that basis does not constitute copyright infringement. Copying the book itself without permission and distributing it, or reproducing the flowchart figure and reprinting it in other materials, could amount to infringement as reproduction of that figure, but this choice is strictly an act of using a solution method to create a program, and does not amount to that.
ここがポイント
- Copyright protects expression and does not protect ideas — a copyrighted work is “a creative expression of thoughts or feelings”, so diverting without permission a concrete expression written by someone else (HTML source, source code, text, figures) infringes the right of reproduction and the right of adaptation. On the other hand, something still at the stage of a notion or idea is not a copyrighted work, so building your own expression on the basis of it is free.
- What is not protected in relation to programs, and where the rights lie — under Article 10, Paragraph 3 of the Copyright Act, copyright protection does not extend to programming languages, conventions (protocols), or solution methods (algorithms). Writing a program based on the procedure shown in a flowchart is therefore not infringement. Also, using a work in which you yourself hold the copyright is not infringement, but note that something created as part of one's duties at an employer is a work made in the course of employment (Article 15), in which the corporation becomes the author.
用語