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Anomaly of Existing Intellectual Property Protection for Software



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The digital sphere, “cyberspace,” is growing by leaps and bounds. Computers and programs are making a profound impact on every aspect of human life: education, work, warfare, entertainment and social life, health, law enforcement, etc. For instance, software plays an enormous role in the health sector by assisting in monitoring patients, refilling prescriptions and billing and keeping medical records. In finance, transactions involving calculations such as interest and account balances are operated by software. Air traffic control, flight schedules, booking and related tasks in the airline industry; and calculations of all sorts of incomes, benefits, expenses and interests in insurance and tax administration institutions have been undertaken with the use of software. This is just at the macro/highest level. At the individual level, the more we use digital devices, the more we need to use software to access services and products. So, the fact that people now need access to digital technologies to sustain modern social, economic and political life is not in dispute. Most digital devices such as computers are useless without programs. Simply stated, access to digital technologies depends highly on software. More precisely, it is practically impossible these days to find a life without the involvement of software and software-based devices. Software used to be, in the 1970s and early 1980s, applied to huge mainframe computers that took up the space of, maybe, an entire room. These days, we have software applied everywhere, in many aspects of our lives. It is not just in laptops but also on our mobile devices and is increasingly integrated into all sorts of objects. We hear about the coming “internet of things,” a phrase summing up the radically increasing connectivity of all sorts of items around us that, expectedly, will be communicating with each other. They will be doing so on the basis of software-based algorithms. Our computers, smartphones, etc. are dependent for their functions on these logical instructions. Before the 1960s, vendors distributed and sold software bundled with computer hardware. Professor Pamela Samuelson quoted the work of Justice Stephen Breyer and has stated the following: “Systems software was, ‘and should continue to be, created by hardware manufacturers and sold along with their hardware at a single price”. During that time there was no clearly recognized protection for computer programs. As time went on, vendors began to unbundle software from hardware and started to provide programs to the public separately packaged. With a view to responding to the needs of industry, on one hand, and to advancing innovation, and encouraging the dissemination of useful arts for the general public on the other, different jurisdictions began to afford separate legal protections to computer software. Many jurisdictions opted for copyright protection as the best option. Recent international copyright treaties such as the World Intellectual Property Organization Copy Rights Treaty (WCT) and the World Trade Organization Trade related aspects of Intellectual Property Right (TRIPS) have a clause on the copyrightability of computer programs. Obviously, it is reasonable to raise questions as to why it is not included in early copyright instruments such as the Berne Convention for the Protection of Literary and Artistic Works. There were early concerns as to the inclusion of computer software in international copyright instruments. This was, partly, justified by the non-inclusion of computer software in Berne Convention. At the regional level, too, certain jurisdictions have adopted separate copyright instruments for the protections of computer software. Nation states such as the U.S. , Canada , Ethiopia , etc. also have recognized the copyrightability of computer programs. A closer look at the history of the tendency to regard software as a copyrightable subject matter tells us that the choice was not the result of research and in-depth study. We also see widespread protection of software products by patent law. In spite of the absence of legislation which directly allows for the patentability of computer software, we witness frequent disputes and litigation as regards the scope and extent of software protection. In addition to intellectual property protections, computing companies are using technological means to exclude others from using their digital works. This approach is called self-regulation. They do so by using technology: encryption, coding, etc. It is also illegal to reverse engineer and decompile computer programs. A trade secret can be used to protect computer software, especially the inner working of software. Software developers also use the law of industrial design as another form of protection for the ‘look and feel’ aspect of their software. On the other extreme, we see some movements which advocate for free and open-source software. It is based on a unique model of innovation. Free software can have two formats: free or open-source software. They are sometimes called FLOSS (Free/Libre/Open Source Software). When we say software is free, we mean that users can use it as they wish, modify it or fix some of its bugs, redistribute it, and access its source code. The problem with existing software protection is that it overlooks its special nature. Software is unique. It involves the writing of millions of lines of codes in the form of source code. There is no dispute as to why software is protected. Writing those millions of lines of code requires an investment of time, intellect and money. Hence, protection is required. The issue is as to the choice of the form of protection. So, this thesis argues the blanket copyright and patent protections of software raise a fairness issue, particularly from the perspective of the consumer’s interest. It also argues the existing laws governing computer software lack clarity and certainty. . Overall, the thesis discusses the existing legal framework for computer programs. It concludes that the system needs reform as it mainly considers the interest of software industry. In other words, consumers and new entrants’ interests have not been given much regard. More importantly, the thesis reflects on the general purpose of intellectual property rights and their applicability to computer programs. The most important reason for the reform is the unique nature of software. By doing so, the thesis suggests for the adoption of special law for computer programs.



Computer Programs, Intellectual Property, Computer, Copyright, Patent, Software



Master of Laws (LL.M.)






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