Legal and Economic Justification for Software Protection

Legal and Economic Justification for Software Protection

Bruno de Vuyst (Vrije Universiteit Brussel, Bruxelles, Belgium) and Alea Fairchild (Vrije Universiteit Brussel, Bruxelles, Belgium)
Copyright: © 2012 |Pages: 12
DOI: 10.4018/ijossp.2012070101
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This article 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.
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A software program is foremost a sequence of orders and mathematical algorithms emerging from the mind of the innovator, hence creating a link with copyright law as a prime source of intellectual property protection.

According to Article 10 TRIPS, computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention provided that they are (1) original and (2) tangible. In light of Article 9 TRIPS, which states that copyright protection shall extend to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such, copyright protects the actual code of the computer program itself, and the way the instructions have been drawn up, but not the underlying idea thereof (Overdijk, 1999).

Hence, an author can protect his original work against unauthorized copying. Consequently, an independent creation from another person would not automatically be seen as a copyright infringement (Kirsch, 2000a; Leijnse, 2003). With respect to software programs this could have as consequence that a person disassembles and decompiles an existing software program to determine the underlying idea and uses this idea to build his own program (reverse engineering). As he only uses the idea, which is not copyrightable, no infringement will result.



Patent Law Protection of Software

Software is a novel form in the technology world, and may make a claim to patent protection from that angle. The conditions to be met to enjoy patent protection are more stringent than those to enjoy copyright protection. In Europe3, for example, an invention will enjoy protection from patent law provided that the invention (1) is new (i.e., never been produced before), (2) is based on inventor activity (i.e., not have been before part of prior art), and (3) makes a technical contribution (i.e., contribute to the state of the art). In the U.S., the patent requirements to be met are (1) novelty, (2) non-obviousness, and (3) the innovations must fall within the statutory class of patentable inventions.

Pursuant to patent law, a patent holder can invoke the protection of his patent to exclude others from making, using or selling the patented invention. As opposed to copyright protection, the inventor’s patent is protected regardless whether the software code of the patented program was copied or not.

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