This chapter discusses legal and economic rationale in regards to open source software protection. Software programs are, under TRIPS1, protected by copyright (reference is made to the Berne Convention2). The issue with this protection is that, due to the dichotomy idea/expression that is typical for copyright protection, reverse engineering of software is not excluded, and copyright is hence found to be an insufficient protection. Hence, in the U.S., software makers have increasingly turned to patent protection. In Europe, there is an exclusion of computer programs in Article 52 (2) c) EPC (EPO, 1973), but this exclusion is increasingly narrowed and some call for abandoning the exclusion altogether. A proposal by the European Commission, made in 2002, called for a directive to allow national patent authorities to patent software in a broader way, so as to ensure further against reverse engineering; this proposal, however, was shelved in 2005 over active opposition within and outside the European parliament. In summary, open source software does not fit in any proprietary model; rather, it creates a freedom to operate. Ultimately, there is a need to rethink approaches to property law so as to allow for viable software packaging in both models.
Key Terms in this Chapter
Copyright: A set of exclusive rights regulating the use of a particular expression of intellectual property.
WTO: World Trade Organization, established on April 15, 1994.
USPTO: United States Patent and Trademark Office.
EPO: European Patent Office (München) established by the EPC.
Patent: A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time, through letters patent which protect an invention by such a grant.
TRIPS: The Agreement on Trade-Related Aspects of International Property, Annex 1C AU36: No table matches the in-text citation "Annex 1C". Please supply a table or delete the citation. of the Marrakech Agreement of April 15, 1994 establishing the World Trade Organization (“WTO”).
EPC: Convention on the grant of European patents (European Patent Convention) of October 5, 1973.