Intellectual Property Protection for Software I
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| Various forms of intellectual property protection (originally designed to protect literary and other artistic works, inventions, trademarks, etc.) have been used to protect software as it has become evident that other existing legal means cannot provide sufficient level of protection. The biggest problem of software legal protection is the fact that no form of intellectual property protection fits its needs, because it is often not efficient in some ways while too strict in others. Specialised sui generis form of IP protection have not been designed yet. |
| Historical Development of IP Protection for Software |
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The first country paying the attention to the need of software owners and developers for stronger legal protection of software were the United States. During the 70s of the 20th century It was clearly recognized that protection through the means of trade secret and contractual provisions could not prevent unauthorised utilisation of the software and therefore some kind of intellectual property (IP) protection must have been made accessible for software. Generally there were three possible ways to adress the issue and those were to grant software either a copyright protection or a patent protection or to come up with a new form of intellectual property protection designed specifically for software. Since the existing forms of IP protection seemed rather unfitting for the purpose of software protection, and creation of the sui generis form of IP protection was anticipated as extremely difficult objective, a specialised group of experts known as the National Commission on New Technological Uses of Copyrighted Works (CONTU) was given a task to scheme out the best possible solution. After several meetings of the commision quite famous Report of the Software Subcommittee to the CONTU was issued stating that software should have fallen into the scope of copyright protection. In accordance with the recommandation the Copyright Act of 1976 was amended in 1980 so that software became eligible for copyright protection. |
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| CONTU first meeting report. | Report of the Software Subcommittee to the National Commission on New Technological Uses of Copyrighted Works. |
About the same time as the discussion concerning the copyright protection for software took place a serious thoughts about a possibility to grant software a patent protection appeared as well. With regard to contemporary case law software clearly was considered as an unpatentable matter. The courts, however, loosened their restrictive attitude to the software patentability during the following years and issued several major decisions causing the fact that nowadays software is eligible for the patent protection. The most important of the decisions were probably those In re Bredley, In re Diehr, In re Abele and In re Alappat.
Despite quite recent debates over the patentability of computer software in the countries of European Community copyright protection remains the only form of IP protection for computer software in Europe. Computer programs are granted the same protection as literary works in accordance with the Berne Convention.
| Pros and cons of various forms of IP protection for software |
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Trade secret protection: |
| + | Efectively prevents stealing of ideas. |
| - | Contradicts the interest of the society towards the free movement of ideas. A lot of meaningless effort may be put into reinventing an idea that has already been invented. |
Copyright protection:
| + | Protects all independent inventors of the idea. No active behaviour is necessary for granting of the protection. |
| - | Does not protect the underlining ideas of the computer software. |
Patent protection:
| + | Contributes to the free movement of ideas. |
| - | Independent inventors of the idea are excluded from its use. Rise of the so called "software monopolies". Difficult and expensive registration procedure. Possible insecurity of software developers concerning the complience of their computer software with existing patents. |
| Legal Framework |
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