Friday, March 03, 2006

Sui Generis Protection for Computer Software

My topic focuses on the legal protection of computer software: how IP law currently protects software, the flaws of this approach, how separate sui generis computer software protection would work better, and how such a proposal will fit within the constitutional and practical framework of intellectual property. I’d like to focus the discussion primarily on the application of a sui generis right.

Currently, computer software is protected under both patent and copyright law. In a nutshell, I believe that computer software has in a sense has snuck under the patent umbrella through judicial decree, not through sound policy decision-making. For a good synopsis of the evolution of the computer software patent, read this short piece from Bitlaw:

Copyright, on the other hand, protects the expression of ideas. In that sense, when software is protected under copyright law, the protection only extends as far as the code itself, and not to the idea behind the code. Remarkable similarities can exist and still not infringe (Consider, for example, the similarities between Microsoft Windows and WordPerfect). The important part of computer software clearly isn’t the specific code the programmer writes, but the idea behind that code. In that sense, I feel that copyright isn’t properly applied to computer software, because it protects the wrong part of the work.

Furthermore, the fact that both patent and copyright apply currently creates the problem of overlapping protection. Numerous problems result from overlapping protection, but primarily the problem is excessive IP protection. For example, when both protections apply, the quid pro quo of the patent regime is subverted because the creation of derivative works based upon the patent will be prohibited by copyright. (For a more in-depth discussion, see “Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection” 19 BERKTLJ 1473.)

In my opinion, the best solution would be to create a new computer software right, which would be independent of both patent and copyright law. Although I have not fully fleshed out my idea, there are several provisions that I feel must be included. This sui generis right would have a durational limit of at most 5 years. Furthermore, it would not require the disclosure of source code. Finally, there would be no exclusive right to make derivative works (reverse engineering will be allowed).

I would appreciate your input on this proposal.

Finally, I will address the practical potential for implementation of a sui generis right. As I see it, there are two areas where potential roadblocks to establishing a sui generis right exist. First, whether the constitution as currently interpreted mandates application of copyright and patent law to computer software. Second, how can the transition from patent/copyright protection to sui generis protection occur smoothly?

Aside from any other questions you have, here are two specific issues I’d like to address in class:

  • There seems to be a constitutional basis for protecting computer software under patent and copyright law in the Copyright Clause: promotion of science and the useful arts. Both patent and copyright can arguably be said to accomplish this goal with respect to computer software patents. If a more efficient sui generis right existed, could this constitutional argument be undercut?
  • A sui generis right for software can be created in the US through new legislation. Could we effectively make the transition from protection under copyright/patent to this new form of protection, though? Could there be a workable distinction between computer software that isn’t patentable, and an invention that is?


Blogger ed said...

Interesting topic dave, think you have some valid points, for posterity i'll mention again my concern with some niche programs or programs that have a long life and high development cost that may need to be recouped over a long basis.

Also I'd point out a piece I saw that you might find interesting at MIT that discusses the threat of software patents.

1:53 PM  
Blogger Aaron said...

Hi.... Good Presentation. I was also concerned about software taht had a lasting impact ie Windows and Acrobat. WOuld the same kind of protection be given here? Also, most hardware has become standardized to run different software programs these days. The key is the software programs that run the hardware. For example, a compute can do a million things wherein the software runs the standardized hardware. So in a way, the software is the key invention these days.

2:12 PM  
Blogger duffee said...

Just to post my question in class: If there is no derivative right, would you have some other form of protection against works that are based on existing software but with only one or two minor modifications?

Also, I was wondering whether you would keep the requirements of novelty and non-obviousness as they currently exist in patent law? Is there some concern that granting too many of these rights (even for short periods of time) might be detrimental to software development?

2:44 PM  
Blogger Christine said...

Although I can't think of a good example off hand - I am wondering whether there are other types of works/inventions that qualify for patent and copyright and whether similar issues exist?

Also - if you pass legislation for a sui generis right - how would existing protected works/inventions be treated? This would be an issue for those who relied on the more extensive rights that are currently provided (i.e. paid high research and development costs based on the expectation of such right; have paid for a license that is still ongoing?) would they be grandfathered - and allowed to finish their current term of protection?

8:49 AM  

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