Wednesday, October 25, 2017

The rise of programmers’ colophons – an intuitive moral rights assertion

It seems to be a contemporary trend of website and software developers to include words such as “Powered by…” on the landing page of a website. Many websites go further, and might provide a very detailed list of the website designer, website maintenance team, and even the providers of copyright content such as fonts, photography, video, and animation.

These have become known as “colophons”. A colophon is traditionally associated with antiquarian books, often in an emblematic way as a sort of literary hallmark. Contemporary books contain the same sort of information in a frontis page. The transition of the concept to websites and software is perhaps a surprise. But the idea is to, first, provide a form of signature or promotion of the skills of the developer or development team. Second, it tells users where to find the development team if there’s a problem with the software that needs the development team to fix. Finally, it also serves as a guard against false attribution.

The colophon is sometimes human-readable, appearing on the landing page or elsewhere within the website. But sometimes these are located in the coding of the software or website.

The exercise of the creation of colophons alludes to the purpose of the 2000 introduction of moral rights into the Australian Copyright Act 1968. Under the Copyright Act 1968 an author has three moral rights:

•the right to be identified as the author of their work (the right of attribution);
•the right not to have a person falsely assert or imply that they are the author of a work (the right not to have authorship falsely attributed);
•the right not to have their work subjected to derogatory treatment which is prejudicial to their honour or reputation (the right of integrity of authorship).

The limited Australian case law on moral rights have all focussed on commercialised creative arts – music, artistic drawings, and photographs. There is a school of thought that moral rights have no place in respect of “other” types of works like computer programs and computer-generated works, a way of thinking perhaps inherited from the Copyright Act 1988 (UK) which specifically excludes the application of moral rights from these sorts of works. The reason for that is a practical one. An update to a website should not constitute derogatory treatment of the work.

But the introduction and use of colophons by participants in the software industry indicates that the industry itself takes a different view – that the work that they do is bespoke and worthy of attribution.

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