Legal and Economic Justification for Software Protection

Abstract

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.