Intellectual Property Protection for Computer Programs: Developments, Challenges and Pressure for Change

Abstract

This book is a study of how computer programs have challenged the thinking about and the actual use of intellectual property rights (IPRs) around the world. In general, the intellectual property (IP) system is governed by the same rules and applies equally to all fields of developments. However, the particular nature of computer software has challenged these fundamentals. Software is a pluralistic product that contains several elements, each of which could fall into different categories of IP laws. Computer programs can be defined as “a combination of computer instructions and data definitions that enable computer hardware to perform computational or control functions”1. IP protection applies differently depending on the manner in which those instructions and definitions are expressed. Currently, several protection mechanisms are available for software, including copyright, patents, trademarks, contracts, licensing agreements, and technical measures of protection. It has been suggested that none of these mechanisms, if used individually, successfully provide an adequate level of protection to computer programs. Software technology started to appear during the 1950s, when the first computer programs were developed. As soon as it became evident that computer software was a highly complex technology that required large monetary investments, both a wide market for software and significant potential for monetary rewards were envisaged. Debates regarding the adequacy of the existing protection mechanisms for software were then initiated. It became immediately clear that each of the existing IP protection mechanisms possessed certain limitations when applied to software. These problems have generated a global debate regarding the extent to which software should be afforded IP protection. Several perspectives have been presented, and a large variety of solutions have been proposed. Some of the proposals embrace rather extremist views. For example, some suggest the complete abolition of IP protection for software in favour of an IP-free regime or the development of a completely new protection mechanism tailored to the special needs of software. In contrast, others see the IP system as playing an extremely important role in securing investments and ensuring progress in the software field and thus advocate a strong level of protection. In addition, several more balanced proposals have been launched, many of which have attempted to shape the existing IP rules such that they meet the needs of computer software. This thesis effectively contributes to this debate by providing a number of balanced, reasonable, and feasible answers to some of the major issues in the software intellectual property ecosystem. The proposed solutions were generated within the framework of the currently existing body of IP laws.