Global Dimensions of Intellectual Property Rights in Science and Technology (1993) / Chapter Skim
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12 A Case Study on Computer Programs
12 A Case Study on Computer Programs
Pages 284-318
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From page 284... ...
. To the extent that computer programs were distributed in this period by firms for whom proprietary rights in software were important, programs tended to be developed and distributed through restrictive trade secret licensing agreements.
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From page 285... ...
Phase 2: Mid-1960s and 1970s Copyright law was one existing intellectual property system into which some in the mid-1960s thought computer programs might potentially fit. Copyright had a number of potential advantages for software: it could provide a relatively long term of protection against unauthorized copying based on a minimal showing of creativity and a simple, inexpensive registration process.
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From page 286... ...
The requirement that the full text of the source code of a program be deposited in order for a copyright in the program to be registered was consistent with a long-standing practice of the Copyright Office,s as well as with what has long been perceived to be the constitutional purpose of copyright, namely, promoting the creation and dissemination of knowledge.6 Relatively few programs, however, were registered with the Copyright Office under this policy during the 1960s and 1970s.7 Several factors may have contributed to this. Some firms may have been deterred by the requirement that the full text of the source code be deposited with the office and made available for public inspection, because this would have dispelled its trade secret status.
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From page 287... ...
Also, much of what copyright law would consider to be unprotectable functional content ("ideas") if described in a book can be protected by patent law.
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From page 288... ...
These decisions were generally regarded as calling into question the patentability of all software innovations, although some continued to pursue patents for their software innovations notwithstanding these decisions. As the 1970s drew to a close, despite the seeming availability of copyright protection for computer programs, the software industry was still relying principally on trade secrecy and licensing agreements.
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From page 289... ...
It predicted that computer programs could also be accommodated in the copyright regime.~4 Copyright law was perceived by CONTU as the best alternative for protection of computer programs under existing intellectual property regimes. Trade secrecy, CONTU noted, was inherently unsuited for mass-marketed products because the first sale of the product on the open market would dispel the secret.
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From page 290... ...
A strong dissenting view was expressed by the novelist John Hersey, one of the members of the CONTU commission, who regarded programs as too mechanical to be protected by copyright law. Hersey warned that the software industry had no intention to cease the use of trade secrecy for software.
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From page 291... ...
. 18One appellate court decision has struck down portions of a state law purporting to validate shrink-wrap restrictions as a matter of contract law because the court thought the statute was in conflict with policies underlying the federal copyright law.
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From page 292... ...
. Under this theory, copyright law would become the legal instrument by which trade secrecy could be maintained in a mass-marketed product, rather than a law that promotes the dissemination of knowledge.
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From page 293... ...
They have, as a consequence, become among the most vocal advocates of strong copyright, as well as of patent protection for computer programs.24 22Samuelson and Glushko, Comparing the views of lawyers and user interface designers on the software copyright "look and feel" lawsuits, 30 Jurim.
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From page 294... ...
Another thing that distinguishes software from other commercial products is that so many different legal mechanisms seem to be available to it. Even after enactment of the Copyright Act of 1976, which for the first time extended federal copyright protection to unpublished works, copyright is still software excepted largely utilized by those who commercially distribute their works in a manner that inevitably forecloses trade secret protection for the work (since publication discloses the contents of the work)
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From page 295... ...
Patent protection for industrial processes that have computer program elements, such as the rubber curing process in the Diehr case, is also uncontroversial. Substantial controversies exist, however, about the application of copyright law to protect other aspects of software, about patent protection for other kinds of software innovations, about the enforceability of shrink-wrap licensing agreements, and about the manner in which the various forms of legal protection seemingly available to software developers interrelate in the protection of program elements (e.g., the extent to which copyright and trade secret protection can coexist in mass-marketed software)
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From page 296... ...
Jaslow's principal defense was that Whelan's copyright protected only against exact copying of program code, and since there were no literal similarities between the programs, no copyright infringement had occurred. In its opinion on this appeal, the Third Circuit stated that copyright protection was available for the "structure, sequence, and organization" (sso)
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From page 297... ...
If there is in the marketplace another program that does the function differently, courts applying the Whelan test have generally been persuaded that the copying was unjustified and that what was taken must have been "expressive." Although the Whelan test has been used in a number of subsequent cases, including the well-publicized Lotus v. Paperback case,3i some judges have rejected it as inconsistent with copyright law and tradition, or have found ways to distinguish the Whelan case when employing its test would have resulted in a finding of infringement.32 Many commentators assert that the Whelan test interprets copyright protection too expansively.33 Although the court in Whelan did not seem to realize it, the Whelan test would give much broader copyright protection to computer programs than has traditionally been given to novels and plays, which are among the artistic and fanciful works generally accorded a broader scope of protection than functional kinds of writings (of which programs would seem to be an example)
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From page 298... ...
The statutory exclusion from copyright protection for methods, processes, and the like was added to the copyright statute in part to ensure that the scope of copyright in computer programs would not be construed too broadly. Yet, in cases in which the Whelan test has been employed, the courts have tended to find the presence of protectable "expression" when they perceive there to be more than a couple of ways to perform some function, seeming not to realize that there may be more than one "method" or "system" or "process" for doing something, none of which is properly protected by copyright law.
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From page 299... ...
Unquestionably, copyright protection would exist for the code of the program and the kinds of expressive displays generated when program instructions are executed, such as explanatory text and fanciful graphics, which are readily perceptible as traditional subject matters of copyright law. A traditionalist would regard copyright protection as not extending to functional elements of a program, whether at a high or low level of abstraction, or to the functional behavior that programs exhibit.
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From page 300... ...
Although some cases, most notably the Whelan and Lotus decisions, have adopted the strong protectionist view, traditionalists will tend to regard these decisions as flawed and unlikely to be affirmed in the long run because they are inconsistent with the expressed legislative intent to have traditional principles of copyright law applied to software. Some copyright traditionalists favor patent protection for software innovations on the ground that the valuable functional elements of programs do need protection to create proper incentives for investing in software innovations, but that this protection should come from patent law, not from copyright law.
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From page 301... ...
They regard attacks on patents for software innovations as reflective of the passing of the frontier in the software industry, a painful transition period for some, but one necessary if the industry is to have sufficient incentives to invest in software development. Some within the software industry and the technical community, however, oppose patents for software innovations.45 Opponents tend to make two kinds of arguments against software patents, often without distinguishing between them.
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From page 302... ...
It would be possible to undertake an economic study of conditions that have promoted and are promoting progress in the software industry to serve as a basis for a policy decision on software patents, but this has not been done to date. Some computer scientists and mathematicians are also concerned about patents that have been issuing for algorithms,48 which they regard as dis 46see Office of Technology Assessment, Finding a saiance: Computer Software, in~ei~ec~ual Property and the Challenge of Technological Change, 8-12 (May 1992)
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From page 303... ...
One other concern worth mentioning if both patents and copyrights are used to protect computer program innovations is whether a meaningful boundary line can be drawn between the patent and copyright domains as regards software.51 A joint report of the U.S. PTO and the Copyright Office optimistically concludes that no significant problems will arise from the coexistence of these two forms of protection for software because copyright law will only protect program "expression" whereas patent law will only protect program "processes.
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From page 304... ...
, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.''Ss This clause has historically been parsed as two separate clauses packaged together for convenience: one giving Congress power to enact laws aimed at promoting the progress of knowledge by giving authors exclusive rights in their writings, and the other giving Congress power to promote technological progress by giving inventors exclusive rights in their technological discoveries. Copyright law implements the first power, and patent law the second.
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From page 305... ...
In the late nineteenth century, the Supreme Court struck down the first federal trademark statute on the ground that Congress did not have power to grant rights under this clause to owners of trademarks who were neither "authors" nor "inventors."58 A similar view was expressed in last year's Feist Publications v. Rural Telephone Services decision by the Supreme Court, which repeatedly stated that Congress could not constitutionally protect the white pages of telephone books through copyright law because to be an "author" within the meaning of the Constitution required some creativity in expression that white pages lacked.59 Still other Supreme Court decisions have suggested that Congress could not constitutionally grant exclusive rights to innovators in the useful arts who were not true "inventors."60 Certain economic assumptions are connected with this view, including the assumption that more modest innovations in the useful arts (the work of a mere mechanic)
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From page 306... ...
If one followed traditional copyright principles, this functional behavior no matter how valuable it might be- would be considered outside the scope of copyright law.63 Although the functionality of program behavior might seem at first glance to mean that patent protection would be the obvious form of legal protection for it, as a practical matter, drafting patent claims that would adequately capture program behavior as an invention is infeasible. There are at least two reasons for this: it is partly because programs are able to exhibit such a large number and variety of states that claims could not reasonably cover them, and partly because of 61See R
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From page 307... ...
A product of the new technologies, such as a computer program, an integrated circuit 64Those who regard software as a"literary work," such as the authors of the "Silicon Epics and Binary Bards" article published a couple of years ago, tend to be proponents of the business-oriented approach to interpreting copyright law to programs, rather than legal scholars. Compare LaST Frontier Report, supra note 19 (describing computer programs as functional works)
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From page 308... ...
The United States is, in large measure, already undergoing the development of a sui generis law for protection of computer software through caseby-case decisions in copyright lawsuits. Devising a modified copyright approach to protecting certain valuable components that are not suitably protected under the current copyright regime would have the advantage of allowing a conception of the software protection problem as a whole, rather than on a piecemeal basis as occurs in case-by-case litigation in which the 68Id.
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From page 309... ...
Supreme Court, for example, construes the scope of copyright protection for programs to be quite thin, and reiterates its rulings in Benson, Flook, and Diehr that patent protection is unavailable for algorithms and other information processes embodied in software. INTERNATIONAL PERSPECTIVES After adopting copyright as a form of legal protection for computer programs, the United States campaigned vigorously around the world to persuade other nations to protect computer programs by copyright law as well.
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From page 310... ...
Since the adoption of its directive on software copyright law, the European Community (ECJ has begun pressing for international adoption of its position on a number of important software issues, including its copyright rule on Recompilation of program code. There is a clear need, given the international nature of the market for software, for a substantial international consensus on software protection issues.
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From page 311... ...
Others took legislative action to extend copyright protection to software. There was, however, some divergence in approach among the member nations of the EC in the interpretation of copyright law to computer software.74 France, for example, although protecting programs under its copyright law, put software in the same category as industrial art, a category of work that is generally protected in Europe for 25 years instead of the life plus 50year term that is the norm for literary and other artistic works.
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From page 312... ...
firms, such as Sun Microsystems, sought a rule that would permit Recompilation and would deny protection to internal interfaces.75 The final EC directive published in 1991 endorses the view that computer programs should be protected under member states' copyright laws as literary works and given at least 50 years of protection against unauthorized copying.76 It permits Recompilation of program code only if and to the extent necessary to obtain information to create an interoperable program. The inclusion in another program of information necessary to achieve interoperability seems, under the final directive, to be lawful.
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From page 313... ...
Notwithstanding their inclusion in copyright law, computer programs are a special category of protected work under Japanese law. Limiting the scope of copyright protection for programs is a provision indicating that program languages, rules, and algorithms are not protected by copyright law.79 Japanese case law under this copyright statute has proceeded along lines similar to U.S.
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From page 314... ...
intellectual property products, including computer programs. In some cases, as in its dealings with the People's Republic of China, the United States has been pressing for new legislation to protect software under copyright law.
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From page 315... ...
What copyright protection should be available, for example, to a user interface that responds to verbal commands, gestures, or movements of eyeballs? Digital Media The digital medium itself may require adaptation of the models underlying existing intellectual property systems.84 Copyright law is built largely on the assumption that authors and publishers can control the manufacture and distribution of copies of protected works emanating from a central source.
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From page 316... ...
Because networks of this type and scope are a new phenomenon, it would seem quite likely that some new intellectual property issues will arise as the use of computer networks expands. The more commercial the uses of the networks, the more likely intellectual property disputes are to occur.
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From page 317... ...
Patents have already been issued for hypertext navigation systems, for such things as latent semantic indexing algorithms, and for other software innovations that might be used in the construction of a new information infrastructure. Although it is easy to develop a list of the possible pros and cons of patent protection in this domain, as in the more general debate about software patents, it is worth noting that patents have not played a significant role in the information infrastructure of the past or of the present.
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From page 318... ...
When pushing for very "strong" intellectual property protection for software today in the expectation that this will help to preserve the U.S. advantage in the world market, U.S.
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